HINDUSTAN RADIATORS CO Vs. HINDUSTAN RADIATORS LIMITED

JUDGEMENT

(1.) M/s. Hindustan Radiators Company, Station Road, Jodhpur, a partnership concern, has filed this suit for permanent injunction against passing off and using its trading style and trade marks by M)s. Hindustan Radiators Limited, Model Town, Delhi, on the allegations that the plaintiff was carrying on business since 1959 and had been manufacturing about hundred types of radiators for use in various vehicles like buses, trucks, cars, jeeps, cranes and compressor etc. under the marks "HINDUSTAN RADIATOR" and with the initials "H. R.", short form of 'Hindustan Radiator on the radiators manufactured by it and due to extensive, long and continuous use the trading style 'HINDUSTAN RADIATOR CO.' and the trade mark 'HINDUSTAN RADIATOR/H. R.'" known and associated with the excellent quality of radiators. manufactured and sold and offered for sale by the plaintiff ; that the plaintiff has since 1959 sold radiators approximately of the value of seven crores of rupees and their present annual sale was approximately fifty lakhs of rupees and the plaintiff's main market is in Delhi ; that the plaintiff has been supplying "HINDUSTAN RADIATORS" to M/s. Mysore State Road Transport Corporation, Mohindra and Mohindra, Bombay, State Transport, Maharashtra, Kirloskar Pneumatic Company. Pune and several other leading concerns, and has also been exporting Hindustan Radiators outside India and has been taking part in exhibitions and has been awarded Udyog Patras ; that the plaintiff has been advertising its radiators with its trade style and marks in various leading trade magazines and has spent approximately two lakhs of rupees on the advertisements and trade promotion and its present annual expense on advertisements is to the tune of Rs. 30,000.00 ; that due to long, continuous and extensive user of the trading style "HINDUSTAN RADIATOR CO." they are known in the public as 'Hindustan Radiator Wale' and their radiators are asked for as 'Hindustan Radiators or H. R. Radiators' ; that the plaintiff has applied for registration of trade marks "H. R." and "HINDUSTAN RADIATOR" in the Trade Marks Registry, New Delhi ; that apart from Government and semi-government bodies, the purchasers and intending purchasers of plaintiffs Hindustan Radiator H. R. radiators include illiterate persons, mechanics, drivers as well ; that about a fortnight before the filing of the suit, the plaintiff has come to note that the defendent had incorporated a company under the name "Hindustan Radiators Limited" with their registered office at Delhi and the main business thereof as evident from trading style and from the brocnure issued by the defendant is of manufacture of radiators for cars, trucks, tractors etc. and the defendant is going to bring radiators on commercial scale into the market soon ; that it has further come to the notice of the plaintiff from the brochure issued by the defendant that the defendant is also using and intend to use the trade mark "H. R." as their mark in respect of their radiators ; that the trading style of the defendant is exactly similar to that of the plaintiff and likewise the mark used by the defendant is also similar and same and the purchasers and intending purchasers would find it difficult to differentiate between the goods of the plaintiff from the goods of the defendant in view of the similarity in the name of the trading style and this would result in passing of the goods of the defendant as that of the plaintiff and to the detriment of the plaintiff and the public and the intending customers are likely to consider the goods of the defendant as that of the plaintiff that even otherwise the public and persons in trade have started making enquiries from the plaintiff about the plaintiff being converted into a limited company under the Companies Act and the public is likely to invest and purchase the defendant's company's share on the assumption and belief that the plaintiffs have converted themselves into a limited company and as such the defendants have collected and are likely to collect share money on the goodwill, name and reputation of the plaintiff ; that the defendant's trading style and the trade marks being similar, confusion between the business and the goods of the parties would cause irreparable loss of business, goodwill, and reputation of the plaintiff ; that the plaintiff being well known in the radiators business, the defendant must be aware about the popularity, goodwill and name of the plaintiff and the adoption of the trading style "HINDUSTAN RADIATORS LIMITED" and the trade mark HINDUSTAN RADIATOR/H R." is not honest from the very beginning and is tainted and the defendant's intention do not seem to be honest as the defendant wants to trade upon the goodwill, name and reputation of the plaintiff which the plaintiff has built up during the last about 27 years and the conduct of the defendant is fraudulent ; that the defendant has adopted the same trading style and similar trade mark to create deliberate confusion with. the business and goods of the plaintiff and take unlawful advantage from the plaintiff's reputation, goodwill, name and long standing ; that the defendant is causing deception and confusion with the plaintiff's business and divert their customers and hence, the plaintiff is entitled to restrain the defendant from using the trading style "HINDUSTAN RADIATORS LIMITED" and trade mark "HINDUSTAN RADIATOR/H. R." and hence, this suit for permanent injunction.

(2.) The defendant has contested this suit of the plaintiff, inter alia, on the ground that the plaintiff is guilty of misrepresentation and suppression of material facts and the trading style of the plaintiff "HINDUSTAN RADIATORS COMPANY" is visually, phonetically and substantially different from that of the defendant and the plaintiffs have not been using "H. R." as the only trade mark but have also been using trade marks such as HRC, HAC and BRADCO ; that the plaintiffs have no right or title in .the name or trade mark because investigations made by the defendant have revealed that there are more than 3,000 units claiming to be manufacturers of radiators in India and at least ten of such units have their trade name that bears the words "Hindustan Radiators" and all these units have existed for the last ten to fifteen years and the plaintiff has not at any point of time objected to the use of the name "Hindustan Radiators" in case of these firms or units and as such the present suit of the plaintiff is malafide ; that even otherwise letters "H. R." have been used even by Haryana Radiators Limited which shows that the plaintiff has no exclusive right therein ; that the plaintiff cannot claim any monopoly in the trade name "HINDUSTAN RADIATORS CO." or trade mark "HINDUSTAN RADIATORS/H. R." inasmuch as 'Hindustan' is a common name and common property of the entire people of India and is a name of country and 'Radiator' is only descriptive term and as such the plaintiff is not entitled to any injunction prayed tor. It may be mentioned here that it is disputed that the plaintiffs have been manufacturing radiators since the year 1959 but it is admilted that the defendant was registered on 2nd August, 1985. It has also been urged that while the plaintiffs was functioning from Jodhpur, the defendant was functioning from Delhi and, therefore, they have entirely different fields of their functioning and that any similarity in the trade name or the trade mark was purely coincidental and not intentional and as such it is prayed that the suit of the plaintiff be dismissed.

(3.) In this suit the plaintiff has filed 1. A. 1989186 under Order XXXIX Rules 1 & 2 read with Section i51 of the Code of Civil Procedure on the same allegations for grant of ad-interim injunction till the decision of the suit which has been contested by the defendant, inter alia, on the same grounds as the suit and it is this application which is sought to be disposed of by this order. I have heard the learned counsel for the plaintiff and the defendant and have gone through the file and after giving my considered thought to the matter before me, I have come to the following findings.