' Plaintiff, a British Company incorporated in London has filed this suit for infringement, passing off, injunction, accounts and damages against the defendant, a private limited company with its registered office at Karachi. Reliefs claimed in the plaint are as under:-
(a) For a permanent injunction restraining the defendant by itself or by or through its servants, agents, dealers or otherwise howsoever from infringing the trade mark Lipton of the plaintiff registered inter alia under Nos.6610, 6611, 6615, 68064, 22660, 20699 and 20941 in classes 29 and 30 and from manufacturing, packing, marketing, selling, offering for sale, advertising or otherwise passing-off the defendant's products by itself or by or through its agents, servants, dealers or otherwise howsoever and for the products of the plaintiff or its affiliates or persons having a business connection with the plaintiff or its affiliates by use of the mark consisting or comprising the word Lipton or any other mark closely resembling the plaintiff's trade mark Lipton as to be likely to deceive or cause confusion, or by the use of any get-up resembling the get-up of the distinctive Lipton carton/packaging aforesaid.
(b) For an order that the defendant do account for the profits wrongfully made by it by the use of the mark Lipton which is a blatant imitation of Lipton and of the carton resembling the distinctive get-up and colour scheme of the Lipton carton/packaging aforesaid and the plaintiff's trade mark Lipton used in a particular manner and form and that the defendant do pay the plaintiff the amount ascertained upon such accounting. the defendant's products under the mark Lipton and the imitated getup/packaging and all goods infringing the trade mark registered inter alia under Nos. 6610, 6611 , 6615, 68064, 22660, 20699 and 20941 for destruction by this Hon'ble Court.
(d) That the defendant do pay to the plaintiff the sum of Rs,10,00,000 as damages with interest thereon at 14% per annum from the date of the suit till payment.
(e) Cost of the suit.
(f) Such other reliefs as to this Hon'ble Court may appear proper.
2. It is the case of the plaintiff that in Pakistan it operates through its affiliate and subsidiary Lever Brothers Pakistan Limited with its office at Avari Plaza, Fatima Jinnah Road, Karachi. It is averred that Lipton Limited were the proprietor of the Trade Mark Lipton registered in Pakistan under various numbers in classes 29 and 30 till 1st October, 1993 which has been assigned to the plaintiff who are the proprietors of the trade mark, and an application has been made to the Registrar of Trade Marks for the recerdal (sic) of the plaintiffs as the subsequent proprietors of the said trade mark.
With effect from 19th February, 1989 Lipton (Pakistan) Limited has been amalgamated with and merged into Lever Brothers Pakistan Limited another subsidiary of the plaintiff company in Pakistan.
It is the case of the plaintiff that the plaintiff and its affiliates have carried on a worldwide and reputable business for many years and are manufacturing and selling food items and other articles of various types including edible oils, Banaspati or vegetable oil, tea, dates, detergents and soaps for toilet and personal use which goods are sold under a number of well-known trade marks of the plaintiff. Such trade marks include in particular the renowned Lipton Trade Mark which has been used in relation to a range of food items internationally for many years. It has been registered throughout the world and in Pakistan the Lipton or Lipton Yellow Label Trade Marks are registered in accordance with Trade Marks Act, 1940 (hereinafter referred as the Act, 1940) in classes 29 and 30 of the international classification of goods. By virtue of registration of different trade marks including Lipton plaintiffs assert the exclusive right to use the said trade marks in Pakistan in relation to the goods for which these are registered. According to the plaintiffs as proprietors of the aforesaid trade mark, it or its affiliates have sucured registration of the said trade mark in ever 100 countries of the world as shown in the computer print out Annexure 'B' to the plaint reflecting the countries in which registration has been secured or applications for registration are pending.
3. It is further the case of the plaintiff that the products sold under their trade mark are also marketed in distinctive trade dress comprising cartons or packaging of distinctive get-up. They have filed specimen and photographs of the Lipton Yellow Label carton and of other Lipton products being currently used in Pakistan, Annexures C/1 to C/4. The said Lipton Yellow Label is essentially a yellow, red and white coloured packet which prominently displays the Trade Mark Lipton and the words Yellow Label in bold letters in white and yellow against a red background all enclosed within a shield-like device with a predominantly white outline with a smaller round- shaped device on top comprising the device of a sheaf and the letters LL within such round- shaped device displayed therein. Such products with the above said trade mark and Packaging have been sold in substantial quantities and widely advertise throughout the world for many years and by virtue of long and extensive use of such trade mark, plaintiffs have enjoyed a very valuable reputation and goodwill in Pakistan and the world at large in respect of the Trade Mark Lipton and particularly such reputation and goodwill has subsisted in Pakistan at all relevant times. It is maintained that throughout the world and in particular in Pakistan the Lipton Trade Made is associated exclusively with the plaintiff or its predecessors by the general public and the trade who recognize and distinguish the said goods by the said Lipton Trade Mark. It is asserted that the said goods have been marketed in the territories of former British India and after the establishment of Pakistan, these have continued to be widely sold and advertised through out the country. It is the grievance of the plaintiff that on 6th October, 1994, upon learning that the defendant had started marketing Banaspati oil under the Mark Lipton, the plaintiffs through their Advocates addressed a legal notice to the defendant for infringement of the registered trade mark and also for passing-off its goods and calling upon the defendant to desist from using the Mark Lipton which was identical to the plaintiff's registered trade mark. The defendants through their reply letter, dated 25th October, 1994 denied the charges made by the plaintiffs and required it to supply copies of registration certificates in respect of trade mark and asserted that had obtained Copyright Registration for the Mark Lipton Banaspati from the Registrar of Copyrights. As despite the service of legal notice and calling upon the defendant not to infringe the plaintiff's trade mark or to pass off their product the defendant continues to sell and advertise their product under the Mark Lipton and in the same packaging as earlier, the get-up whereof is identical with and is a deliberate and fraudulent imitation of the distinctive get-up of the carton or packaging used for the genuine Lipton product of the plaintiff, hence this suit.
4. Alongwith the plaint, plaintiffs filed the aforesaid C.M.A. Under the provisions of Order XXXIX, rules 1 and 2, C.P.C. For temporary injunction against the defendant from selling, advertising or passing-off their products as and for the products of the plaintiffs. A notice of this C.M.A. Was issued to the defendant for 28-6-1995 but as the process-server reported that they had refused to accept the notice, a learned Judge of this Court passed an interim order directing the defendants to refrain from carrying on their trade under Trade Mark of Lipton till the next date of hearing which order has been extended from time to time.
5. In the written statement as well as counter-affidavit to the C.M.A. Filed by the defendant, main ground urged by defendants is that the plaintiffs have failed to submit any registration certificate for Lipton Banaspati and that they cannot claim monopoly in respect of all food items by reason of its registered trade mark in classes 29 and 30. At any rate, plaintiffs are neither manufacturing nor marketing Lipton Banaspati or Cooking oil for which defendant has obtained registration from the Registrar Copyrights, Government of Pakistan vide Registration Certificate, dated 17th August, 1994.
While denying, various assertions of the plaintiff there seems to be no dispute that the plaintiffs are the registered owners of Lipton Trade Mark since long and they have been marketing and manufacturing various food items within this country and across other countries.
6. In the affidavit-in-rejoinder, plaintiff reiterated its assertions with the only addition that the plaintiffs or its subsidiary in Pakistan namely Lever Brothers Pakistan Limited not only manufacture tea, soap, detergents, etc. But also a number of food items including Banaspati or cooking oil under various well-known brands without specifically stating whether the plaintiff or its subsidiary are manufacturing and marketing Banaspati or cooking oil under its trade name. Registration of the defendant from the Registrar of Copyright is stated to be of no use and without any legal consequence in so far as the grievance of the plaintiffs for the infringement of its rights are concerned.
7. In order to resolve the controversy and to appreciate the same in its proper perspective it would be advantageous to refer to sections 20 and 21 of the Trade Marks Act. Under subsection (1) of section 20, no person can file an infringement action except upon a registered trade mark or a mark which has been continuously used since before the 25th February, 1937 and an application for the registration thereof has been made within five years from the commencement of the Act and has been refused. Subsection (2), however, is an exception to an action for infringement which stipulates that nothing in this Act shall be deemed to affect rights of action against any person for passing-off goods as the goods of another person or the remedies in respect thereof. Since the plaintiff has primarily :Ind essentially complained of infringement of its trade mark as well as passing heir registered trade mark by the defendant, it may not be out of context to refer to section 21 of the Act, 1940 which reads as under:-- ' "Right conferred by registration.--(i) Subject to the provisions of sections 22, 25 and 26, the registration of a person in the register at proprietor of a trade mark in respect of any goods shall give to that person the exclusive right to the use of the trade mark in relation to those goods and, without prejudice to the generality of the foregoing provision, that right shall be deemed to be infringed by any person who, not being the proprietor of the trade mark or a registered user thereof using by way of the permitted use, uses a mark identical with it or so nearly resembling it as to be likely to deceive or cause confusion, in the course of trade, in relation to any goods in respect of which it is registered, and in such manner as to render the use of the mark likely to be taken either- -
(a) as being used as a trade mark; or
(b) to import a reference to some person having the right either as a proprietor or as registered user to use the trade mark or to goods with which such a person as aforesaid is connected in the course of trade."
8. There is no cavil with the proposition and rather no contest with regard to the factual position that the plaintiff-company and its predecessor have been registered users of Trade Mark Lipton and manufacturers of various goods and 'mainly food items in a large part across the world for many decades and their goods are well known for quality and high standard. There is also no dispute that Trade Mark Lipton which alongwith its get-up, colour, shape and style is well known as distinction of the plaintiffs and people at large including a lay' man is well-versed with the Trade Mark Lipton since a very long time. It is, thus not difficult to subscribe to the view that prima facie the plaintiffs have enjoyed the long-standing exclusive right to use the said trade mark and also earned goods name, marketable goodwill and reputation for the production and manufacture of its goods in different parts of the world with the Trade Mark Lipton. The fact of the matter, however, remains that at no time has the plaintiff-company or its affiliates including its subsidiary Lever Brothers Pakistan Limited ever manufactured Banaspati or cooking oil under the Trade Mark Lipton which is being produced by the defendant for the last about three years as shown in the plaint. The sole ground of defence urged by the defendant is that the plaintiff is not the manufacturer of this particular food item, and therefore, not entitled to complain of so-called violation or infringement of its right within the meaning of the term.
9. It is true that the plaintiff or its subsidiaries are not producing and marketing Banaspati oil with the Trade Mark Lipton, a glance at the Mark Lipton used by the defendant for its product Lipton Banaspati clearly tends to show that there is a considerable similarity of get-up, colour scheme, shape, style and device with that of the registered trade mark of the plaintiff who are undisputedly manufacturing and marketing a number of food items with this trade mark since long. Argument advanced on the face of it may sound to be attractive by reason of non-production of banaspati oil by the plaintiff-Company under its registered trade mark and strictly speaking there may be no infringement of their legal right as to the use of their trade mark for this specific product. The fact, however, remains that by imitating their trade mark extensively the defendant prima facie if not contravening the trade mark in respect of the goods produced by the plaintiff is at least apparently wrongly and unlawfully using their trade mark creating an impression as if their product is in fact produced by the plaintiff-Company. Public at large being fully conversant with and by extensive use of plaintiffs products are quite likely to be duped and to gather an impression as if Banaspati Lipton produced and marketed by the defendant is the product of the plaintiff multinational company who have acquired a lawful vested right to produce and manufacture various food items with their trade name. The label, colour scheme, device style and mark used by the defendant on their product of Lipton Banaspati tends to give a prima facie impression that notwithstanding the mention of the defendant-Company's name on the tin packs of Banaspati oil, public at large is most likely to be deceived and form a genuine opinion that their product is the product of the plaintiff-Company which by any stretch of reasoning and logic cannot be ignored to the utter detriment and disadvantage of the plaintiff. After all the defendant has a wide range and open field to choose another name for its product and in case it insists for its production under the trade name of the plaintiff, there is hardly any strong and convincing reason to justify the use of registered trade mark extensively used and enjoyed by the plaintiff-Company for over decades.
10. Before proceeding further with the respective contentions and the merits of their respective views, a reference to the case-law on the subject may be of some advantage to arrive at a right conclusion.
' In A & F Pears Ltd. v. Ghulam Haider (PLD 1959 (W.P.) Karachi 154) late Qadeeruddin Ahmed, J. (as his Lordship then was and subsequently rose to the office of Chief Justice of this Court) expressed the view that: ' "A mark vouchers for the goods which bear it. If another person borrows it, then he borrows the reputation of the others too. Unfair competition may exist not only in the sale of goods of the same character but in the unfair appropriation and use of the trade mark of another. There can be innocent use of the trade mark of another but even then it is objectionable."
' In Muhammad Ismail v. Messrs Soofi Soap Factory (PLD 1973 Lahore 208), Aftab Hussain, J. (as his Lordship then was) dealing with an identical question laid down the following propositions with regard to the passing off: (a) It is unlawful for a trader to pass off his goods as the goods of another; (b) even if this is done innocently it will be restrained; (c) A'fortiorari it done designedly, for that is a fraud; (d) although the first purchaser is not deceived, nevertheless if the article is so delivered to him as to be calculated to deceive _a purchaser from him, that is illegal.
' In Taktronix Incorporated v. M. Abdul Manan (PLD 1973 Karachi 14), a learned Single Judge of this Court while restraining the defendants, amongst others, relied on the following passage at page 990 of Clark and Lindswell on Torts, 11th Edition: ' "It is an actionable wrong for a trader so to conduct this business, as to lead to the belief that his goods or business are the goods or business of another. This wrong is known as 'passing off'. It is immaterial, whether the false representation, as to the goods or business involved in passing off, is made expressly by word, or impliedly by the use or imitation of a mark, trade name or get-up, with which the goods of another are associated, in the minds of the public."
' In Montgomery Flour and General Mills Ltd. v. Registrar, Trade Marks, Karachi, (PLD 1973 Karachi 567); sitting/judgment in appeal from the decision of the Registrar of Trade Marks, late Tufail Ali A.
Rehman, C.J. (as his Lordship then was) held that the deception which is sought to be avoided by clause (a), section 8 of the Act, 1940 is deception to the effect that a person might assume in buying particular goods that they have been manufactured by the company having the right to use the trade mark and not the deception that the goods are certain other goods which are in fact manufactured by that company.
' In Ferozuddin v. Muhammad Shafi (PLD 1975 Karachi 486), it was ruled that Courts generally protect persons against infringement of their trade mark, even though trade mark was not yet registered, if plaintiff prima facie could establish, long user of trade mark. In this case a learned Judge approved the discussion on passing off in Halsbury's Laws of England, 3rd Edition at pages 594 and 595 which is as follows: ' "The consequence of the application of the right to prevent passing off is that a trader, who uses name or mark or get-up that has become distinctive of his goods, can prevent others using the name or a similar name or mark, where that use will deceive or is calculated to deceive a substantial number of members of the trade or public into thinking that goods, offered for sale or supplied by them are his."
' In Bata Limited v. Allied Corporation (1986 CLC 1636). Ibadat Yar Khan, J. (as his Lordship then was) after an exhaustive and elaborate review of the earlier case-law from the sub-continent as well as English law held that the main criterion for registration of a trade mark would be that an unwary purchaser should not be led to believe that goods of appellant and respondents come from the same source and belonged to the same origin. If this is not ensured then it cannot be said that the chances of deception and cause of confusion are eliminated irrespective of the fact whether the goods are sold on the same counter and through the same trade channel. His lordship while dsaling with an appeal from a decision allowing the registration of Trade Mark "Bata" ruled that considerations for refusing registration of a mark would not only be to save a prior owner from possible losses, but more than that to protect and safeguard interest of innocent public and customer who could be duped to pay for something which he should not be getting in return.
' In Riaz Ahmed Mansuri v. Abid Ali Qazi (1990 MLD 1786), a learned Single Judge of this Court after reviewing the earlier case-law on the subject observed that in an action or infringement of a registered trade mark the plaintiff need only to assert his registration and allege infringement.
While bringing a claim for passing off whether alone or together with a claim for infringement of trade mark, plaintiff must prove that his mark was distinctive and had been continuously in use and the defendants and copies the same in order to deceive the customers.
11. In Ellora Industries v. Banarasi Dass (AIR 1980 Delhi 254), it was held that the law protects all intangible elements of value and it is not always necessary that there must be in existence goods of that other man with which the defendant seeks to confuse his own.
' In Virendra Dresses v. M/s. Vuarinder Garments (AIR 1982 Delhi 482), plaintiff was carrying on business of readymade garments under the name and style of Virender Dresses". The defendant some two years thereafter started a similar business on the same street as that of the plaintiff under the name and style of "Varinder Garments". The plaintiff filed a suit for permanent injunction for passing off and moved an application for interim injunction restraining the defendant from adopting the said trade name which was refused by the trial Court. In appeal High Court of Delhi held that the two trade names were not distinctively different but were similar and this similarity was sufficient to give rise to great risk or confusion. Learned Judge observed that it would mislead the people to believe that the business of the defendant was the business of the plaintiff and since plaintiff had been carrying on business two years prior to the starting of defendant's business, they had acquired reputation and their sales had risen. Order of the trial Court was, thus set aside and interim injunction issued.
' In Ganga Prashad Gupta & Sons v. S.C. Gudimani (AIR 1986 Delhi 329). The view taken was that a trader acquires a right in a distinctive mark merely by using it upon or in connection with his goods irrespective the length of such user and the extent of his trade and this is independent of its registration which merely affords further protection under the statute. Priority in adoption and use of trade mark is superior to priority in registration. Common law rights are left wholly unaffected by registration.
' In Messrs Avis International Ltd. v. Avi Footwear Industries (AIR 1991 Delhi 22), plaintiffs were manufacturing garments and using the Trade Mark "Avis" whereas defendants were using "Aevis" as Trade Mark for their footwear. Plaintiffs filed a suit against the defendants in which the defendants' only assertion was that there had been non-user of the Mark "Avis" with respect to footwear for a period longer than the statutory period. The burden to prove that in fact there has been non-user for the statutory period was on the defendants. Plaintiffs asserted that they had been using the word "Avis" upon the footwear. The High Court expressed the view that phonetically the word "Avis" which was a registered mark for footwear and the word "Aevis" had to be pronounced identically and that the balance of convenience would be in favour of the plaintiffs to ensure that by concurrent user, during the period of trial, no other rights came into existence and issued the interim injunction prayed for.
12. A similar question came up for consideration before their Lordships of the Supreme Court in Alpha Sewing Machine Company v. Registrar of Trade Marks and another (PLD 1990 SC 1074) in which the petitioner-Company had applied for registration of Trade Mark "Philip" for sewing machine which was strenuously opposed and contested by M/s. Philips Electrical Limited who were the registered proprietors of Trade Mark "Philips" since long. On behalf of the petitioner argument raised before the apex Court was that the Philips Limited were neither manufacturing nor marketing sewing machine under their registered trade mark and a reference was made to the case decided as Seven-up Company v. Kohinoor Thread Ball Factory (PLD 1990 SC 313) but their Lordships of the Supreme Court declined to accept the rationale of the submission and observed that no doubt it has been laid down in the above-referred case as a proposition that the protection of trade mark where it is for the consumer or the owner of the trade mark is essentially relatable to the goods and not independent of the goods. On this rationale the trade mark Seven-up for wool, thread, soap, and another Trade Mark "Sony" for sports goods, was treated as not having gone beyond the stage where "One can infer a slightest likelihood of deception or confusion to earn protection in a Court of law". The ratio being that the route classification of the goods involved was so vastly different that there was no chance of "deception or confusion".
' Their Lordships further observed that: ' "The fact that the company '7-Up' is a multinational of international repute in the market for beverages and for that reason not likely to engage itself in trading in such an indigeneous product may academically be sound for a marketing analyst but really of no or very little concern to the class of consumers served by these products. Their sale points and outlet points are quite often the same. The consumers served are largely of the same category. Both the products though classified differently for the purpose of trade mark fall, from consumers' point of view, in the same category of light refreshment of 'Pep' preparations. Their features do make out a case of there being likelihood of confusion or deception with regard to their source. The applicants for this registration mark had a wide and open field to choose from. They decided upon the trade name of another which also happens to be name of the company which has heavily invested in that trade name and goodwill appurtenant to it. With that real likelihood of deception and confusion it was clearly a case where registration should have been refused."
' Aforesaid reasoning and dictum of the apex Court is fully attracted to. The facts of the case in hand for the reason that there is every likelihood of a greater deception and confusion in the minds of the customers and general public A to buy the defendant's product as and for the product of the plaintiff-Company who have by passage of long time, extensive advertisement and marketing of various goods acquired a very valuable right to protect and defend their trade name and registered trade mark.
' In Tabaq Restaurant v. Tabaq Restaurant (1987 SCMR 1090) a Full Bench of the Supreme Court observed as under: ' "The right in the trade mark existed even prior to the Act and that it was property and the rights in it remained protected admits of no serious doubt. Trade mark has been treated as property and right in it as ownership, the property being incorporeal.
' He who by his skill and labour establishes a business acquires thereby an interest in the goodwill of it, that is to say, in the established disposition of customers to resort to him. To this goodwill he has an exclusive right which is violated by any one who seeks to make use of it for his own advantages, as by falsely representing to the public that he is himself carrrying on the business in question. Special forms of this right of commercial goodwill are rights to trade names and trade marks. Every man has an exclusive right to the name under which he carries on business or sells his goods to this extent at least that no one is at liberty to use that name for the purpose of deceiving the public and so injuring the owner of it. He has a similar right to the exclusive use of the marks which he impresses upon his goods, and by which they are known and identified in the market as his.
' Similarly, section 54 of the Specific Relief Act, 1877 enacted in the year 1877 contains an express provision that a trade mark is a property and invasion of the right therein may call for a perpetual injunction. The Penal Code makes provisions in sections 478 to 486 with regard to protection of such a property right and punishing deliberate violations of it."
13. Reddaway v. Banham (1896) A.C. 199 (13 RPC 218, HL), is a case in which Lord Herschell referring to the case of Leather Cloth Company v. The American Cloth Company (11 House of Lords 538, page 192) laid down the following dictum: ' "The fundamental rule is that one man has no right to put off his goods for sale as the goods of a rival trader, and he cannot, therefore, be allowed to use names, marks, letters, or other indicia, by which he may induce purchasers to believe that the goods which he is selling are the manufacture of another person."
' In Computer vision Corporation v. Computer vision Limited (1975) RPC page 171, Lord Plowman while granting an injunction held that in view of the evidence that wide diversification in the electronics field was common place, there was sufficient overlap in the plaintiffs' and the defendants' fields of activity for the purpose of passing off. The facts of the case were that the plaintiffs accepted that the defendants' products would not be in competition with theirs but contended that the defendants' goods and business would be taken to be connected with their own goods and business. The defendants produced evidence that they had chosen their corporate title because their equipments included 'optical character readers" which gave their computers "vision" and that, therefore, the title described their products. They also contended that the two names were sufficiently different to avoid confusion and that there was no common field of activity.
' In Erven Warnink v. Townsend, 1980 R.P.C. 31 (HL), Lord Fraser of Tullybelton at page 105 of the report expressed the requirements which must be present in order to create a valid cause of action in passing off, as follows: ' "The plaintiffs must show (i) That his businesss consists of or includes selling in England a class of goods to which the particular trade name applies; (ii) that the class of goods is clearly defined, and that in the minds of the public, or a section of the public in England, the trade name distinguishes that class from other similar goods; (iii) that because of the reputation of the goods, there is goodwill attached to the name; (iv) that he, the plaintiff, as a member of the class of those who sell the goods, is the owner of the goodwill in England which is of substantial value; and (v) that he has suffered, or is really likely to sufffer a substantial damage to his property in the goodwill by reason of the defendants selling goods which are falsely described by the trade name to which goodwill is attached. Provided these conditions are satisfied ' . I consider that the plaintiff is entitled to protect himself by a passing off action."
' In the aforesaid case, Lord Diplock expressing himself with regard to the concept of goodwill observed as follows: ' "The concept of goodwill is in law, a broad one which is perhaps expressed in words used by Lord Mac Naghten in C.I.R. v. Muller (1901) AC 217. It is the benefit and advantage of the good name, reputation and connection of a business. It is the attractive force which brings in custom."
' In the Law Society of England and Wales v. Griffiths and another, 1995 (1995) RPC page 16, Mr. Justice Aldous in the Chancery Division granted injunctive relief holding that (i) there was clear evidence to suggest that the defendants had selected their telephone number intending to divert business from the plaintiffs" scheme; (ii) that a caller hearing a recorded message on the defendant's number would believe that he had in fact received a reply from the plaintiffs; (iii) that a person who selected a telephone number confusingly similar to another's may well-represent that he is the other either by saying so or by failing to take steps to disabuse anyone calling his number; (iv) that there was ample evidence to conclude that their was a serious issue to be tried;
(v) that the initial effect of conclusion would be a loss of business to members of the plaintiffs' scheme and an undermining of confidence in the scheme; (vi) That the plaintiffs had a substantial reputation in a variety of activities and misrepresentation by the defendants would damage their goodswill; (vii) that damages would not be an adequate remedy for the plaintiffs. Loss of confidence in their scheme could not readily be quantified whereas damages, if any, to the defendants caused by an injunction could be assessed; and lastly. (viii) it was not in the public interest or in the interest of solicitors as a whole that two similar telephone numbers should be used for two similar activities.
' In this case plaintiffs had launched a scheme called Accident Line whereby members of the public could telephone number 0500-192939 for general advice in respect of accidents and personal injuries and if, appropriate for referral to solicitors' expert in the field. The defendants did not qualify for the members of the scheme and consequently obtained telephone number 0800-192939 for their own accident advice service which they called The Griffiths and Thomas Accident Help Line.
They denied any dishonest intention and any real chance of confusion with the plaintiffs' scheme; no damage would be sustained by the plaintiffs and a case of passing off did not arise. They further argued that they had merely selected a telephone number and answered it when called, which did not amount to misrepresentation.
14. No precedent or any other proposition of law to the contrary supporting the view propounded on behalf of the defendant has been cited at the Bar. It, thus, seems that the defendant-Company wants to thrive at the cost of the plaintiff in order to secure unlawful gain by taking undue advantage and wrongful gain of the mere circumstance that the plaintiff-Company is not producing Banaspati oil which in law as well as equity cannot be permitted. At any rate, there is a greater possibility and every likelihood of deception and confusion on the part of innocent buyers and consumers to buy the product of the defendant as and for the goods produced by the plaintiff considering those to be product of the plaintiff-Company. In my view the plaintiff has strongly made out three well-settled essential requirements for the grant of a temporary injunction pending the decision of the suit.
15. In view of the aforesaid discussion and the legal position, interim order passed earlier is confirmed and C.M.A. Under reference gratned as prayed.
Interim .