Delhi High Court
Neev Investment & Trading Pvt. Ltd. vs Sasia Express Couriers Pvt. Ltd. And ... on 11 May, 1993
Equivalent citations: 51(1993)DLT443, 1993(26)DRJ500
JUDGMENT S.C. Jain, J.
(1) The facts giving rise to this application are that M/s Neev Investment & Trading Pvt. Ltd (hereinafter referred to as the plaintiff/applicant) is a company incorporated under the Companies Act,1956 and among other businesses, it carries on the business of , couriers through I (2) A Suit for permanent injunction for restraining the defendants from making the use of the name 'SASIA EXPRESS' has been filed and in this Suit this application for ad interim injunction has been filed.
(3) The defendant/respondent No. I made appearance. It has contested this application and filed a written reply. Defendant/Respondent No.2, Mr. L.R. Sridhar also made appearance through counsel and filed a separate reply in which it has been admitted that the plaintiff/applicant is carrying on the business of couriers under the name and style of 'SASIA EXPRESS',but however, the principal company is M/s Neev Investment and Trading Pvt Ltd. He has also admitted that he was working with the plaintiff company and he tendered his resignation and his resignation has since been accepted. He has denied that he has anything to do with the affairs of defendant/respondent No. I company. He has denied floating any company to deceive and mislead the public. He has denied that he has misappropriated any fund,as alleged by the plaintiff/applicant and that he has been contacting various clients of the plaintiff/applicant to recover money from them to encash on the popularity of the plaintiff/applicant company.
(4) The defendant/respondent No. I company in its reply has stated that it is not aware that the plaintiff/applicant is carrying on the business of courier under its trade name/trade mark 'SASIA EXPRESS' for the last about 2 years. It got the company company registered in the name of 'SASIA Express Couriers Pvt LTD'. It has been denied that any misrepresentation was made in getting this company registered in this name. It is stated that this company was incorporated in the year 1992 after going through the papers and after verifying the other facts. It is denied that the defendant/ respondent No. I by carrying its business under the name and style of 'SASIA Express Couriers PVT. LTD' is likely to cause immense harm and injury to the plaintiff/applicant.
(5) As far as the facts are concerned, it is not in dispute that the plaintiff/applicant has been carrying on the business of couriers under the trade name/trade mark 'SASIA EXPRESS' for the last about 2years. The trade name/trade mark 'SASIAEXPRESS' also forms part of the logo of the plaintiff/applicant. This use of the name 'SASIAEXPRESS' is prior to the incorporation of the defendant/respondent No. I company under the name of 'SASIA Express Couriers Pvt LTD' which was registered on 19.11.1992. The main stress of the arguments of the learned counsel of the defendant/respondent is that using the name 'SASIAEXPRESS' which is forming part of their name 'SASIAEXPRESS Couriers Pvt LTD' cannot be said to be unlawful, and that no injunction can be granted against the defendant/respondent restraining it from using this name 'SASIA EXPRESS',which forms the dominant part of the name of the company, namely, 'SASIA Express Couriers Pvt LTD'. He also argued that defendant No.2 has nothing to do with defendant/respondent No. I which is a registered private limited company. Stress has also been laid on the point that the name used by the plaintiff/applicant is not a registered name and the name of the plaintiff company is M/s Neev Investment and Trading Pvt. Ltd.
(6) Learned counsel for the plaintiff/applicant argued that the defendant/respondent No. I fraudulently and purposefully with a deliberate view to securing unethical and undue advantage of the goodwill earned by the name 'SASIA EXPRESS' used by the plaintiff/applicant in respect of its courier service had started using the name 'SASIA Express Couriers Pvt LTD' with a similar logo in the same courier business, after a considerable long time when the plaintiff/applicant started its courier business and earned a good name. According to the learned counsel it was done by invasion of the plaintiff/ applicant company's proprietary right in its good will. This was done with a view to create an impression amongst the trade and the persons dealing with the defendant/respondent No. I company that they were dealing with the plaintiff/applicant company. He relied upon a decision of this Court in M/s. K.G.Khosla Compressors Ltd. vs. M/s. Khosla Extractions Ltd and Others in support of his contention that a Civil Court has got jurisdiction to grant injunction in such like cases. He also relied upon a decision of this Court in Bhandari Homoeopathic Laboratories vs. L.R. Bhandari (Homoeopaths) Pvt Ltd [1976 T.L.R 1382 {Delhi}].
(7) I am not in a position to accept the argument of the learned counsel for defendant/respondent No. I that it is entitled to carry on business in its own name i.e. 'SASIA Express Couriers Pvt LTD' and by using the name 'SASIA EXPRESS' as the prominent name of its service and there cannot be any restraint on that. Section 34 of the Trade and Merchandise Marks Act only protects a person of the bona fide use of his own name. Passing off action need not merely relate to the goods. On prima facie ground, it is apparent that the defendant No. I had adopted this name, 'SASIA Express Couriers Pvt LTD' deliberately to cash on the goodwill and reputation of the plaintiff/ applicant in the same business, i.e. courier service. Using of the same logo 'SASIA EXPRESS' in the same style by the defendant/respondent No. I shows the deliberate attempt on its part that it wants to give an impression to the general public that the said business is being as that of the plaintiff.
(8) In the case of Simatul Chemical Industries Pvt Ltd vs. Cibatul Ltd , Cibatul Ltd filed a suit against the other company (Simatul Chemical Industries Pvt Ltd) on the ground that the name under which Simatul was doing business was so deceptively similar to the name of Cibatul that the public at large and the consumers were likely to 'be deceived into believing that they were dealing with the same company or companies having some connection or association with each other and that in order to protect Cibatul from its goodwill being invaded and in order to prevent confusion among the public at large and consumers, it was felt necessary to restrain Simatul from carrying on business under that name or under any such similar name or style. It appeared that both these companies were manufacturing goods of similar nature. In this case the name 'SASIA EXPRESS' is the trade name of the plaintiff/applicant's couriers business and it also forms part of the logo of the plaintiff/applicant company. The plaintiff/applicant is using this trade name 'SASIA EXPRESS' for the last about 2 years and has also entered into a Memorandum, of Understanding with a company outside India for carrying on the courier business under this trade name. The name adopted by the defendant/respondent No. 1 as 'SASIA Express Couriers Pvt LTD' dealing in the courier business is so similar that confusion is likely to be created in the minds of all those who are dealing with the plaintiff/ applicant company that they were dealing with the plaintiff/applicant company. Where the name of the company incorporated subsequently would be deceptively similar to that of an existing trade name,the latter is entitled to restrain the former by injunction from carrying on its business with such a deceptively similar name.
(9) In this case on prima facie ground it is apparent that the defendant/respondent No. 1 in order to secure unethical and undue advantage of the goodwill earned by the plaintiff/applicant company has adopted the same name 'SASIA EXPRESS' in the same business , of courier service by way of invasion of the plaintiff/applicant company's proprietary right in its goodwill. It appears to have been done with a view to creating an impression amongst the trade and the persons dealing with the defendant/respondent company that they were dealing with the plaintiff/applicant company.
(10) I am,therefore, of the prima facie view that the plaintiff/applicant is entitled to an ad interim injunction restraining the defendants, their agents, servants and/or anyone claiming under them using, promoting, trading and carrying on their courier business under the name and style 'SASIA EXPRESS'. Defendant No.2, who was admittedly working with the plaintiff/applicant company and dealing with the courier division,and who has now resigned from the plaintiff/applicant company is also restrained from approaching the clients/customers of the plaintiff company to demand any outstandings due and payable by them to the plaintiff company. Ordered accordingly.
(11) As this order has been passed on prima facie view of the matter, it should not be construed as an expression of opinion on the merits of the case.