N R DONGRE Vs. WHIRLPOOL CORPORATION

JUDGEMENT

(1.) This appeal by way of special leave is by the defendants against whom a temporary injunction was granted by the learned single Judge of the Delhi High Court in an original suit by order dated 31st October, 1994, which has been affirmed on appeal by the Division Bench by its order dated 21-4-1995. The suit is a passing off action brought by the plaintiff- respondents to restrain the defendant appellants from manufacturing, selling, advertising or in any way using the trade mark Whirlpool in (or) any other trade mark deceptively or confusingly similar to the trade mark of Whirlpool in respect of their goods. The subject-matter of this appeal is the manufacture, sale and advertisement of washing machines by the defendants-appellants using the mark Whirlpool as a part of the name by which they had recently commenced marketing the washing machines manufactured by them. In short, the claim of the plaintiff-respondents is based on prior user of the mark Whirlpool and a trans-border reputation indicating that any goods marketed with the use of the mark Whirlpool gives the impression of it being a goods marketed by the plaintiffs; and the washing machines manufactured, sold and advertised by the defendants give that impression resulting in confusing the intending buyers with this impression. In this suit, the plaintiffs sought a temporary injunction which has been granted by the learned single Judge and affirmed by the Division Bench of the High Court.

(2.) In view of the fact that the trial of the suit has yet to conclude and the final decision of the suit is awaited, it is appropriate that the question of temporary injunction is decided only on the basis of undisputed facts and the material which can legitimately be taken into account at the interlocutory stage. For this reason reference is confined by us only to such material which can be of significance at this stage.

(3.) The Whirlpool Corporation, plaintiff No. 1 is a multi-national incorporated in U. S. A. TVS Whirlpool Ltd., plaintiff No. 2 is a limited company incorporated in India in which the plaintiff No. 1 is a majority shareholder. The plaintiff No. 2 has been licensed by the plaintiff No. 1 to use the trade mark and trade name Whirlpool. The defendants Nos. 1 and 2 are the trustees of Chinar Trust; and defendants Nos. 3 and 4 are the trustees of Mansarovar Trust also trading as Usha-Shriram (India) . Usha International Ltd., the defendant No. 5 is a company incorporated under the Indian Companies Act. The defendants have registrations in respect of trade marks such as Usha, Usha-Shriram and Usha-Lexus.