United Airways (Bangladesh) Ltd vs United Airlines Inc on 21 March, 2011

[Cites 12, Cited by 0]

Calcutta High Court

United Airways (Bangladesh) Ltd vs United Airlines Inc on 21 March, 2011

Bench: Pinaki Chandra Ghose

IN THE HIGH COURT AT CALCUTTA
CIVIL APPELALTE JURISDICTION
APPEAL FROM AN ORDER PASSED IN ITS ORDINARY
ORIGINAL CIVIL JURISDICTION

G.A. No. 2864 of 2010
A.P.O.T. No. 515 of 2010
A.P.O. No. of 2010
Arising out of
G.A. No. 1805 of 2010
C.S. No. 138 of 2010

United Airways (Bangladesh) Ltd.
Vs.
United Airlines Inc.
BEFORE:

The Hon'ble Mr. Justice PINAKI CHANDRA GHOSE
A N D
The Hon'ble Mr. Justice SHUKLA KABIR (SINHA)

For Appellant : Mr. S.K.Kapur, Senior Adv.
Mr. Jishnu Saha, Adv.
Mr. S. Basu, Adv.
Mr. P. Sinha, Adv.
Mr. A. Chander, Adv.
Mr. Atish Ghose, Adv.

For Respondent : Mr. Ranjan Bachawat, Adv.
Mr. Shuvashis Sengupta, Adv.
Mr. Sanjay Baid, Adv.

Heard on : 20.09.2010

Judgment on : 21.03.2011

PINAKI CHANDRA GHOSE, J.: This appeal is directed against a

judgment and/or order dated 23rd August, 2010 passed by the

Hon'ble Single Judge when His Lordship was pleased to pass an order

of injunction restraining the respondent by itself or its servants,
2

agents or otherwise howsoever from using mark "United" or any other

mark which is identical with and/or deceptively similar to the

plaintiff's mark "United" or United Airlines".

The facts of the case briefly are as follows :

The case of the plaintiff/respondent is that at all material time

the plaintiff and its predecessor-in-interest had and continue to use

the word "United" as its trademark and as part of its corporate name.

The plaintiff/respondent is engaged in the world-wide business

of providing various kinds of services including transportation of

passengers, property and mails by air, making reservation, bookings

and arrangements of travels and tours, car reservations etc. The

plaintiff/respondent was the largest passenger cargo carrier in the

U.S. employing approximately 100,000 people and at a fleet of 600

aircrafts. The plaintiff/respondent has world wide recognition and

acquired goodwill and reputation throughout the world. The mark

"United" is a part of the corporate name of the plaintiff/respondent.

The plaintiff/respondent has been awarded recognition for its services
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world-wide. The plaintiff/respondent spent huge amounts for

promotion of its service highlighting its trade mark "United".

The plaintiff/respondent is the sole and exclusive owner of the trade mark which has also

been registered in various countries. It is the case of the plaintiff/respondent that the Star

alliance partners of United have been flying to various cities in India for years. The said "United"

is also known to the Indian citizens. The plaintiff/respondent has also obtained registration of its

trade-mark "United" in India under the provisions of the Trademarks Act, 1999 in various classes

including Class-39.

The plaintiff/respondent trademark "United" has acquired a worldwide reputation and

recognition has become a well known and famous mark.

The plaintiff/respondent came to learn that the appellant herein is using the

plaintiff/respondent's trademark "United" as part of its corporate name and is offering services

under the trademark "United" in Bangladesh. The plaintiff/respondent herein initiated an action

for passing off its trademark "United" against the appellant/defendant in Bangladesh. The

application was initiated for interim relief which was refused. An appeal was preferred by the

plaintiff/respondent before the District Judge at Dkaha. The case of the Plaintiff/respondent is

that the appellant/defendant is offering its services worldwide under the trademark "United".

Accordingly the plaintiff/respondent served a notice dated 3rd November, 2009 on the

appellant/defendant calling upon it to cease and desist from using the mark "United" as a

trademark. The said letter was replied.

The appellant/defendant created a portal from where it appears that they are offering

flight to Dubai, Kathmandu, Kolkata, Kualalampur, London etc.
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It is the further case of the plaintiff/respondent that the appellant/defendant has started

its service from Dhaka to Kolkata and also intends to operate flights from Kolkata to London and

has established an office at 55B, Mirza Ghalib Street, Kolkata - 700 016.

In these circumstances, it is stated that the appellant/defendant is wrongfully and

illegally using the plaintiff/respondent's trademark, knowing fully well that the

plaintiff/respondent is the registered proprietor of the said trademark "United" and its associate

trademark and has a right and is entitled to use the said mark exclusively.

Hence, a suit has been filed by the plaintiff/respondent in this Court on the ground that

the appellant/defendant has acted wrongfully and illegally and is imitating and using the

registered trademark of the plaintiff/respondent and further that the appellant/defendant is also

passing off and/or attempting to pass off its services using the trade mark of the

plaintiff/respondent which is identical and similar to the trademark of the plaintiff/respondent.

The further case of the plaintiff/respondent is that the defendant/appellant is using the said

mark, which is deceptively similar and/or identical in respect of the plaintiff's trademark. Such

use of the said mark by the defendant is detrimental to the rights and enjoyment of the said mark

by the plaintiff/respondent. In the said suit an injunction petition has been filed by the

plaintiff/respondent (G.A. No. 1805 of 2010).

The appellant/defendant duly filed its affidavit before the Court. It is the case of the

appellant/defendant that the defendant is known as United Airways (Bangladesh) Ltd. and the

words "United Airways" are part of the defendant/appellant's name.

The said application was disposed of by the Hon'ble Single Judge by granting an

injunction restraining the defendant/appellant from using the said mark.

Being aggrieved, this appeal has been preferred by the defendant/appellant herein.
5

Mr. S.K. Kapur, learned Senior Advocate appearing on behalf of the appellant/defendant

submitted that the plaintiff/respondent actions instituted by the plaintiff in its home country of

the United States of America, United Kingdom and in Bangladesh, but no interim relief was

granted by the said Court. It is further submitted that the present action has been initiated with

an ulterior motive by the plaintiff/respondent.

He further submitted that in view of the earlier actions instituted by the

plaintiff/respondent this action could not be instituted. Therefore, no order should be passed in

this mater. Our attention has also been drawn to other Airlines who are using the word "United"

as part of their names. The appellant refers to one by the name of "United Africa" another by the

name of "United Aviation" and several others.

It is further submitted that if any order is made by this Court, it would be a conflict with

the order which may be passed by the Bangladesh Court. Our attention has also been drawn to

the principle of committee of Courts by Mr. Kapur, learned Senior Advocate and he submitted

that the injunction should be vacated.

Mr. Kapur, specifically submitted that since the word "United" is a common English word

it would not detract from the plaintiff's rights as the registered proprietor thereof and the

statutory exclusivity over the same.

He further submitted that the defendant is registered with the International Air Transport

Association and with the Indian Government and has been carrying on business in India from

2005.

He further submitted that the plaintiff/respondent does not operate its flights out of India

and the plaintiff's registration of the marks in India would amount to trafficking in marks without

real or meaningful use thereof in this country.
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He also drew our attention to the following decisions in support of his contention :

1. (2010) 2 SCC 142 (Skyline Education Institute (India) Pvt. Ltd. Vs. S.L.
Vaswani & Anr.);
2. (2005) 9 SCC 129 (State of Bihar and Ors. Vs. Bihar Rajya M.S.E.S.K. K.
Mahasangh & Ors.);
3. (2010) 4 SCC 728 (Oswal Fats and Oils Ltd. Vs. Additional Commissioner
(Adminsitration), Bareilly Division, Barelly and Ors.);
4. 1990 Supp SCC 727 (Wander LTd. and Anr. Vs. Antox India Pvt. Ltd.);
5. AIR 1996 Bombay 149 (Kirloskar Diesel Recon Pvt. Ltd. & Anr. Vs. Kirloskar
Proprietary Ltd. & Ors.)
6. 2002 FSR 31 (Asprey and Garrad Ltd. Vs. WRA (Guns) Ltd.)
7. AIR 1968 Andhra Pradesh 160 (Sri Ramadas Motor Transport Private Ltd.,
Kakinada Vs. Vijayawada Municipality Represented by Its Municipal
Commissioner).
8. 2007 (2) SCC 230 (Raghunath Rai Bajera & Anr. Vs. Punjab National Bank &
Ors.)
9. 1997 PTC (17) 98 (Bengal Waterproof Ltd. Vs. Bombay Waterproof Mnfg. Co.).
10. 1999 PTC 72 (T.T.K. Prestige Ltd. & Anr. Vs. Har Prasad Gupta & Ors.)
11. 1998 PTC (18) 698 (Indian Shaving Products Ltd. & Anr. Vs. Gift Pack & Anr.)
12. 1996 PTC (16) 583 (N.R. Dongre Vs. Whirlpool Corporation).

Mr. Ranjan Bachwat, learned Advocate appearing on behalf of the

respondent drew our attention to the interpretation of statues and submitted that

in the case of "Aswini Kumar Ghose Vs. Arabinda Bose, the following

observations were made by the majority and the dissenting judges:

Per 'Patanjaali sastri, J.

"The non obstante clause in Section 2 cannot be read as specifically repealing only particualr provisions of the Bar Councils Act and the Original Side Rules. If the section covers all Advocates of the Supreme Court, the non obstante clause can reasonably be read as overriding 'anything contained' in any relevant existing law which is inconsistent with the new enactment, although the draftsman 7 had primarily in his mind a particular type of always conflicting with the new Act. The enacting part of a statute must, where it is clear, be taken to control the non obstante clause where both cannot be read harmoniously; for, even apart from such a clause, a later law abrogates earlier laws clearly inconsistent with it. Posteriores leges priores contraries abrogant."

Per 'Mukherjea, J.':

"It is one of the settled rules of construction that to ascertain the legislative intent, all the constituent parts of a statute are to be taken together and each word, phrase or sentence is to be considered in the light of general purpose and object of the Act itself."

He further submitted that in the present case "United" mark has no nexus with any kind of or services for which it has been registered in this country. Therefore, according to him, it is a common English word but cannot be detracted from the rights of the plaintiff/respondent as the registered proprietor thereof and the statutory exclusivity conferred on the plaintiff/respondent by reason of the registration. The other point that whether there is a common reliefs of this mark in India. He drew our attention to the decision of the Hon'ble Single Judge where His Lordship has specifically dealt with the said aspect which is quoted hereunder :

"There are several paragraphs which have been expended in the petition in support of the plaintiff's case that it uses the mark in India. At paragraph 13 of the petition, the plaintiff says that it has a tie-up with Jet Airways in India and the frequent flier programme run by Jet Airways would entitle a member of such programme to avail of tickets on the plaintiff's airline. Elsewhere, at paragraph 12 of the petition, the plaintiff has referred to the plaintiff's tickets being available to be purchased on the interest. The plaintiff also has a general sales agent in India and is part of the code 8 sharing with Star Alliance which has a clutch of prominent airlines as its members, which operate in India."

Mr. Bachwat, appearing on behalf of the respondent submitted that the decisions cited by Mr. Kapur, appearing on behalf of the appellant have no application in the facts and circumstances of this case.

Relying on the decision of Bengal Waterproof Ltd. (Supra) Mr. Bachwat, learned Advocate submitted that the respondent filed a suit for passing off in Bangladesh and filed this instant suit for infringement in India. The action of passing off or infringement would give a recurring cause of action to the holder of the trademark by which a person would be deceived. Every time a person passes off his goods or infringes a trademark as those of another he commits a recurring act of deceit or breach or infringement of such trademark giving a recurring and fresh cause of action.

Relying on the decision of T.T.K. Prestige Ltd. (Supra) Mr. Bachwat further submitted that the validity of the plaintiff's trademark can not be challenged in a suit for infringement. The proper procedure is to file an application for rectification of the registered trademark.

Relying on the decision of Indian Shaving Products Ltd. (Supra) Mr. Bachwat further submitted that it is a recognized principle of law that a trader or a businessman can acquire exclusive rights to use a particular word with a 9 dictionary meaning as a trademark if it has acquired a secondary meaning or a distinctive character with the constant user for a considerable period of time. If a product is launched in a particular country, the goodwill and reputation which a seller earns by selling his commodities in the market do not remain confined to the four corners of the said country and it can acquire transborder reputation. The defense that the other persons are also using the said trademark is not available to the defendants as the court is called upon to decide the disputes in between the parties which are before it and cannot be expected to adjudicate the dispute which is not before it.

Relying on the decision of N.R. Dongre (Supra) Mr. Bachwat further submitted that it is well settled that a plaintiff is entitled to an order of injunction in a passing off action on the strength of its transborder reputation even without actual physical use of the trademark in India.

We have noticed that in Skyline Education Institute (Supra) the Supreme Court held as follows :

"In our opinion, the findings recorded by the learned Single Judge and the Division Bench on the crucial factors like prima facie case, balance of convenience and equity are based on a correct and balanced consideration of various facets of the case and it is not possible to find any fault with the conclusions recorded by them that it is not a fit case for restraining the respondents from using the word "Skyline" in the name of the institute established by them. It has not been disputed on behalf of the appellant that the work "Skyline" is being used as trade name by various 10 companies/organizations/business concerns and also for describing different types of institutes/institutions. The voluminous record produced by the respondents before this Court shows that in India as many as 117 companies including computer and software companies and institutions are operating by using the word "Skyline" as part of their name/nomenclature. In the United States of America, at least 10 educational/training institutions are operating with different names using "Skyline" as the first word. In the United Kingdom also two such institutions are operating. In view of this, it is not possible to agree with the learned counsel for the appellant that Skyline is not a generic word but is a specific word and his client has right to use the word to the exclusion of others."

We have also noticed in State of Bihar (Supra) the Hon'ble Supreme Court held as follows :

"45. A non obstante clause is generally appended to a section with a view to give the enacting part of the section, in case of conflict, an overriding effect over the provision in the same or other Act mentioned in the non obstante clause. It is equivalent to saying that in spite of the provisions of the Act mentioned in the non obstante clause, the provision following it will have its full operation or the provisions embraced in the non obstante clause will not be an impediment for the operation of the enactment or the provision in which the non obstante clause occurs. (See Principles of Statutory Interpretation, 9th Edn., by Justice G.P. Singh - Chapter V, Synopsis IV at pp. 318 and 319)

46. When two or more laws or provisions operate in the same field and each contains a non obstante clause stating that its provision will override those of any other provisions or law, stimulating and intricate problems of interpretation arise. In resolving such problems of interpretation, no settled 11 principles can be applied except to refer to the object and purpose of each of the two provisions, containing a non obstante clause. Two provisions in the same Act, each containing a non obstante clause, require a harmonious interpretation of the two seemingly conflicting provisions in the same Act. In this difficult exercise, there are involved proper considerations of giving effect to the object and purpose of two provisions and the language employed in each. (See for relevant discussion in para 20 in Sarwan Singh v. Kastruri Lal).

47. Normally the use of a phrase by the legislature in a statutory provision like "notwithstanding anything to the contrary contained in this Act" is equivalent to saying that the Act shall be no impediment to the measure (see Law Lexicon words "notwithstanding anything in this Act to the contrary"). Use of such expression is another way of saying that the provision in which the non obstante clause occurs usually would prevail over other provisions in the Act. Thus, non obstante clauses are not always to be regarded as repealing clauses nor as clauses which expressly or completely supersede any other provision of the law, but merely as clauses which remove all obstructions which might arise out of the provisions of any other law in the way of the operation of the principal enacting provision to which the non obstante clause is attached. (See Bipathumma v. Mariam Bibi, Mys LJ at p. 165)."

We have also noticed in Oswal Fats and Oils Ltd. (Supra) the Hon'ble Supreme Court in the said decision giving the time of deciding the question whether the word "Person" appearing in Section 154(1) can be construed in a manner which would defeat the object and purpose of the legislation. The Supreme Court came to the conclusion that if a narrow meaning is given to the word "Person", appearing in the said section, the purpose of legislation viz. abolition of Zamindari and making tillers owner of land, which is in consonance 12 with the mandate of the object and social justice set out in the preamble and the provisions contained in Articles 38 and 39 of the Constitution, would be substantively defeated because in that event companies, corporations, etc. will be able to grab the land of the tillers by offering them comparatively remunerative prices and again make them landless poor and at the time of interpreting the same the Supreme Court relied upon the decision of Ramanlal Bhailal Patel Vs. State of Gujarat reported in (2008) 5 SCC 449.

In the said decision the Supreme Court further held that :

"...........In our view, the Explanation instead of narrowing the meaning of the work "person" makes it clear that the same would include a non-natural person..........".

We have also noticed in Wander Ltd. (Supra) where the Supreme Court held as follows :

"Para - 9. Usually, the prayer for grant of an interlocutory injunction is at a stage when the existence of the legal right asserted by the plaintiff and its alleged violation are both contested and uncertain and remain uncertain till they are established at the trial on evidence. The court, at this stage, acts on certain well settled principles of administration of this form of interlocutory remedy which is both temporary and discretionary. The object of the interlocutory injunction, it is stated "...is to protect the plaintiff against injury by violation of his rights for which he could not adequately be compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such 13 protection must be weighed against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. The court must weigh one need against another and determine were the 'balance of convenience' lies."

The interlocutory remedy is intended to preserve in status quo, the rights of parties which may appear on a prima facie case. The court also, in restraining a defendant from exercising what he considers his legal right but what the plaintiff would like to be prevented, puts into the scales, as a relevant consideration whether the defendant has yet to commence his enterprise or whether he has already been doing so in which latter case considerations somewhat different from those that apply to a case where the defendant is yet to commence his enterprise, are attracted."

"14. The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion. After referring to these principles Gajendragadkar, J. in Printers (Mysore) Private Ltd. v. Pothan Joshep : (SCT 721)"

"...These principles are well established, but an has been observed by Viscount Simon in Charles Osenton & Co. v. Jhanaton '... the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case'.

The appellate judgment does not seem to defer to this principle."

Therefore, in our opinion the Hon'ble Single Judge in the facts and circumstances of this case applied His Lordship's discretion and it would not be proper for us to take a different view, since, in our opinion, the discretion has been used judiciously and not capriciously.

We have noticed in Kirloskar Diesel Recon (Supra) where the Bombay High Court it was held that the defence of Section 34 of the Trademark Act, 1958 (which is same as the Section 35 of the Trademark Act, 1999) is not available to artificial persons like companies. In the case of an incorporated company, the adoption of the name is by choice whereas in the case of a natural person, the adoption of surname is not by choice.

We have also noticed in Asprey and Garrard Ltd. (Supra) where it has been held that own name defence had never been held to apply to names of new companies as otherwise a route to piracy would be obvious. For the same reason a trade name, other than its own name, newly adopted by a company, cannot avail it.

In Sri Ramadas Motor Transport (Supra) of the Full Bench of the Andhra Pradesh High Court it appears to us that the uses of the pronoun "his" in relation to person are applicable to human individual only and the Court held that the word "Person" is used in Section 93(4) of the said Act and the object of Section 93(1) the word "Company" is used as different from person.

In Raghunath Rai Bareja (Supra) where the Supreme Court as follows :

"57. The literal rule of interpretation really means that there should be no interpretation. In other words, we should read the statute as it is, without distorting or twisting its language.

58. We may mention here that the literal rule of interpretation is not only followed by judges and lawyers, but it is also followed by the layman in his ordinary life. To give an illustration, if a person says "this is a pencil", then he means that it is pencil; and it is not that when he says that the object is a pencil, he means that it is a horse, donkey or an elephant. In other words, the literal rule of interpretation simply means that we mean what we say and we say what we mean. If we do not follow the literal rule of interpretation, social life well become impossible, and we will not understand each other. If we say that a certain object is a book, then we mean it is a book. IF we say it is s book, but we mean it is horse, table or an elephant, then we will not be able to communicate with each other. Life will become impossible. Hence, the meaning of the literal rule of interpretation is simply that we mean what we say and we say what we mean".

In Bombay Waterproof Mnfg. (Supra) where the Supreme Court held as follows :

".....It is not well settled that an action for passing off is a common law remedy being an action in substance of deceit under the Law of Torts. Wherever and whenever fresh deceitful act is committed the person deceived would naturally have a fresh cause of action in his favour. Thus every time when a person passes off his goods as those of another he commits the act of such deceit. Similarly whenever and wherever a person commits breach of a registered trade mark of another he commits a recurring act of breach or infringement of such trade mark giving a recurring and fresh cause of action at each time of such infringement to the party aggrieved."

In T.T.K. Prestige Ltd. (Supra) where the Delhi High Court held that where the registration of a trade mark and all the subsequent assignment and transmissions of the trade mark are followed. In the instant case the said trade mark cannot be challenged and/or questioned in a suit for infringement of a trade mark. The remedy lies to apply before the Appropriate Forum for rectification of the said registered trade mark.

We have noticed in Indian Shaving Products (Supra) where the Delhi High Court held as follows :

"23. It is a well recognized principle of law that a trader or a businessman can acquire exclusive rights to use a particular word with a dictionary meaning as a trade mark if it is shown to the satisfaction of the Court that it has acquired a secondary meaning or a distinctive character with the constant user for a considerable period of time. The user of the impugned word must be to such an extent that it has lost its primary meaning and has acquired a distinctive character. The moment the same is used it must remind the consumer of the goods of the plaintiffs. It has 17 become so popular with the public by way of goodwill or a reputation that the moment it is used and referred to a picture emerges in the mind of the consumer of the article in question which is being sold under the said trade name. Thus the only qualification attached to the use of a descriptive word as a trade mark is that it must have been associated and used in connection with the goods of the plaintiffs for such a considerable period that it has come to acquire an altogether different meaning other than the one which it conveys in the language."

"42.......A product and its trade name transcends the physical boundaries of a geographical region and acquires a transborder or overseas or extra-territorial reputation not only through import of goods but also by its advertisement. The knowledge and the awareness of the goods of a foreign trader and its trade mark can be available at a place where goods are not being marketed and consequently not being used."

The defence that other persons are also using the said trade mark, is not available to the defendants. Since the Court cannot adjudicate upon a dispute which is not before it.

After applying the said principle laid down by the Courts, in our opinion, admittedly the plaintiff/respondent is the proprietor of the trade mark of "Untied". From the facts and materials placed before us we hold that the plaintiff/respondent have established a prima facie case in their favour for grant of an ad-interim injunction in their favour.

The plaintiff/respondent also produced materials before us to show that they are using the mark in India and further there is no dispute that the plaintiff's mark has been registered in the year 2005.

It further appears to us that the action taken by the plaintiff/respondent in Bangladesh is only with regard to the passing off their mark since the plaintiff's mark is not registered mark in Bangladesh. Therefore, we hold that the causes of action of the plaintiff/respondent defers from the action taken in Bangladesh by them and are distinct from the present action and, therefore, the plaintiff/respondent is entitled to have the protection in view of the registration and its marks in India.

Therefore, for the reasons stated hereinabove we come to the conclusion that His Lordship has exercised the discretion in the matter judiciously. Therefore, in our considered opinion, the said order does not suffer from any irregularity and/or illegality.

We do not find any merit in this appeal.

Hence, this appeal is dismissed.

Xerox certified copy of this order, if applied for, be supplied to the parties on usual undertakings.

( PINAKI CHANDRA GHOSE, J. ) I agree, (SHUKLA KABIR (SINHA), J.) 20 21 Mr. Kapur submitted that this case relates to a non-obstinate clause as dealt in the said decision of the Supreme Court where the Supreme Court held that non obstante clauses are not always as repelling clause nor as clauses which exclusively or completely supersedes any other provision of the law. Merely as classes which remove all obstructions which may out of the provision of any other law in the way of the operation of the principle connecting the provision to which the non obstante clause is attached.

He further drew our attention to 2010 (4) SCC 728 where he submitted that the word "Person" includes not only natural persons but also company or association.

He also relied upon a decision of Wander Ltd. and Anr. (Supra) where the Supreme Court held that the Appellate Court should not interfere with the discretion of the Single Judge when the Single Judge exercised its discretion in the matter.

In the case of Kirloskar Diesel Recon Pvt. Ltd. (Supra) where the Supreme Court held that the defence of section 34 of the trade and merchandise Act 1958 is not available to refer persons like companies and engaged company the adoption of the name is by choice where in the case of a natural person, the adoption of surname is not by choice.

In 2002 FSR 31 the Court held that own name defense is not available to the company.

In AIR 1969 Andhra Pradesh 160 where the Special Bench construed the word "Person" in section 93(4) of the Andhra Pradesh District Municipalities Act, 1920 as not including a company. It was held that use of pronouns like "he"

"who' and "his" are applicable to a human individual which made it clear that the word "Person" certainly can not to a company.

In 2007 2 SCC 230 where the Court held that the literal rule of interpretation really means that there should be no interpretation. In other words, the literal rule of interpretation simply means that we mean what we say 23 and we say what we mean. If we do not follow the literal rule of interpretation, social life will become impossible and we will not understand each other.

After considering the facts and circumstances placed before us by the parties it appears to us that the plaintiff's mark has been registered in the year 2005 with effect from 2003. The plaintiff/respondent also produced some materials to show the use of the mark in India and, therefore, it appears to us that the plaintiff/respondent herein has been able to make out a case which is prima facie in their favour.

The action taken by the plaintiff/respondent in Bangladesh was for passing off since the plaintiff's mark is not registered mark in Bangladesh but from the facts it appears to us that the causes of action in the plaintiff's actions are distinct and the respondent is entitled to have the protection in view of the registration and its marks in India as entitled them to get an injunction in the facts and circumstances of this case.

Hence, in our considered opinion the order so passed by His Lordship does not suffer from any irregularity and/or illegality and we find that there is not merit in this appeal.

Hence, this appeal is dismissed.

Xerox certified copy of this order, if applied for, be supplied to the parties on usual undertakings.

( PINAKI CHANDRA GHOSE, J. ) I agree, (SHUKLA KABIR (SINHA), J.)

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