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Dhanbad Lab Instruments India Private ... vs Metravi Instruments Private Limited on 23 May, 2025
cites
Chandrakant Sahu vs Coal India Limited 47 Wa/48/2018 Indra ... on 10 December, 2019
65. The third test that is required to be answered by the plaintiffs is that the
defendant's act may cause or is likely to cause damage to the plaintiff's
business. Once it is found that the (prima facie though) that the plaintiff
has sufficient goodwill and the defendant's conduct has led to
misrepresentation, likelihood of damages being caused to the plaintiff
becomes almost a certainty. At this stage we are not required to be
satisfied that actual damage has been caused to the plaintiff. Mere
likelihood of damage would do. In this regard paragraph 13 of the
judgment of the Hon'ble Supreme Court in the case of Laxmikant V.
Patel3 (supra) may be noticed:
The Companies Act, 2013
Wander Ltd. And Anr. vs Antox India P. Ltd. on 26 April, 1990
"31. Trade mark is essentially adopted to advertise one's product and to
make it known to the purchaser. It attempts to portray the nature and, if
possible, the quality of the product and over a period of time the mark may
become popular. It is usually at that stage that other people are tempted to
pass off their products as that of the original owner of the mark. That is
why it is said that in a passing-off action, the plaintiff's right is
"against the conduct of the defendant which leads to or is intended or
calculated to lead to deception. Passing-off is said to be a species of
unfair trade competition or of actionable unfair trading by which one
person, through deception, attempts to obtain an economic benefit of
the reputation which another has established for himself in a
particular trade or business. The action is regarded as an action for
deceit". [See Wander Ltd. v. Antox India (P) Ltd. [1990 Supp SCC 727]
, SCC p. 734, para 16.]"
Srmb Srijan Private Limited vs B. S. Sponge Pvt. Limited on 2 August, 2023
67. The unreported judgment in case of SRMB Srijan Private Limited vs. B.
S. Sponge Pvt. Ltd (APO 157/2023) hardly helps the
appellant/defendant inasmuch as the said order was passed in a totally
Page 33 of 35
2025:CHC-OS:81-DB
different set of facts. In the said case, initially the plaintiff had issued a
cease-and-desist notice on 25th May, 2021 and then had not pursued its
claim. After about two years, in the year 2023 a suit was instituted, and
urgency was sought to be artificially created by introducing the word
'recently' in the plaint in order to project that in case any notice was
served, the plaintiff would suffer irreparably. Such is not the case here.
Be that as it may, in view of the case made out in the plaint which thus
far has not been so dented as to propel us to disbelieve the same and the
fact that the appellant has on its own website (a copy whereof has been
annexed to the plaint and the stay application) projected that
"METERIVA" has been a brand of the appellant/defendant since 2023 the
point raised by Mr. Basu need not detain us further.
Kaviraj Pandit Durga Dutt Sharma vs Navaratna Pharmaceutical ... on 20 October, 1964
53. Mr. Basu had relied on the judgment in the case of Kaviraj Pandit
Durga Dutt Sharma1 (supra) for asserting that added matter is
sufficient to distinguish the goods of the defendant from that of the
plaintiff and that the marks have to be seen as a whole. We feel that the
said judgment supports the plaintiff more than the defendant. It was a
case of infringement of trademark. In the said case too, the Hon'ble
Supreme Court had held in paragraph 29 thereof that the "purpose of the
comparison is for determining whether the essential features of the
plaintiff's trade mark are to be found in that used by the defendant" and it
was in such context that the Supreme Court observed that "....... the
object of the enquiry in ultimate analysis is whether the mark used by the
defendant as a whole is deceptively similar to that of the registered mark
of the plaintiff". A reading of the said judgment as whole reveals that the
Hon'ble Court cautioned not to disregard parts which are common,
because it is that part which would ultimately deceive and create
confusion. In fact the observations of the Hon'ble Supreme Court in
paragraph 30 of the Kaviraj Pandit Durga Dutt Sharma1 judgment
clarify all doubts. The said paragraph is quoted hereinbelow:
Cadila Healthcare Limited vs Cadila Pharmaceuticals Limited on 26 March, 2001
15. It was contended that the impugned order did not contain any discussion
on visual similarity and that no reasons had been assigned in the
impugned order for arriving at the conclusion. It was further submitted
that although the decision of Cadila Health Care Ltd. vs. Cadila
Pharmaceuticals Ltd.2 had been cited in the order yet the tests for
passing off had not been applied.
Section 28 in The Trade Marks Act, 1999 [Entire Act]
S. Syed Mohideen vs P. Sulochana Bai on 17 March, 2015
36. It is now very well settled that in order to maintain an action for passing
off the suitor must pass the classical trinity test as recognized by the
Hon'ble Supreme Court in the case of S. Syed Mohideen vs. P.
Sulochana Bai4. Paragraph 31.1 of the report deserves notice in the
present context:
Commissioner Of Income Tax, Bangalore ... vs B. C. Srinivasa Setty, Etc. Etc on 19 February, 1981
39. A little more than a score years later the Hon'ble Supreme Court
in C.I.T. v. B.C. Srinivasa Setty6 while referring to several authorities of
both Indian as well as foreign Courts, elucidated the term goodwill in the
following words: