hindustan radiators co. vs hindustan radiators ltd. on 11 february, 1987

7/27/2019 Hindustan Radiators Co. vs Hindustan Radiators Ltd. on 11 February, 1987

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Delhi High Court

Delhi High Court

Hindustan Radiators Co. vs Hindustan Radiators Ltd. on 11 February, 1987

Equivalent citations: AIR 1987 Delhi 353, 1987 (1) ARBLR 182 Delhi

Bench: M Chandra

JUDGMENT

The plaintiff

(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'smain 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 intendingpurchasers 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 defendant 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 brochure 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


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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 suitfor 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 andas 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 admitted 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 151 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.

(4) Before the plaintiff can be said to be entitled to ad interim injunction it would be necessary for the plaintiff

to establish that he has a prima facie case in his favor and the balance of convenience lies in the grant of

ad-interim injunction so as to protect him otherwise irreparable injury would be caused to him. In order to

prove its prima facie case the learned counsel for the plaintiff has drawn my attention to the fact that the

plaintiff has been in this business since 1959 whereas the defendant had got itself incorporated in August,

1985. So far as the defendant's incorporation in August, 1985 is concerned, it is admitted in the written

statement by the defendant. As regards the plaintiff being in this business, my attention has been drawn firstly

to various purchase orders, photostat copies whereof have been filed by the plaintiff. Copies of Purchase order

dated 15th July, 1959 of Mohindra & Mohindra Limited, purchase order dated 5th September, 1962 of

Mysore State Road Transport Corporation, purchase order dated 11th March, 1963 of State Transport,

Maharashtra, purchase order dated 24th February, 1982 of Kirloskar Pneumatic Co. Ltd., letter dated 3rd

December, 1983 of Rajasthan State Mines and Minerals Ltd., letter dated 30-1-1983 of Prashant Khosla

Pneumatics Ltd., purchase order dated 30-4-1978 of Atlas Copco (India) Ltd., letter dated 7-1-1983 of J. K.

Satoh Agricultural Machines Ltd.; letters dated 11-12-1984 & 15-6-1984 from Air Force Station, Jodhpur,




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purchase order dated 6-7-1984 of Plasser (India) Pvt. Ltd., letter dated 26-11-1984 of Hindustan Zinc Ltd.,

letter dated 7-9-1982 of K. C. Khosla Compressors Ltd., purchase order dated 31-8-1978 of Rajasthan State

Road Transport Corporation, purchase order dated 24-2-1982 of Kirloskar Pneumatic Co. Ltd., purchase order

dated 25-9-1976 of Krishi Engines Limited, inspection voucher dated 15-2-1982 of Hmt Limited, purchase

order dated 15-12-1984 of Consolidated Pneumatic Tool Company (India) Ltd., purchase order dated

23-4-1984 of Chief Ordnance Officer, Controller of defense Accounts, letter dated 12-6-1984 from Executive

Engineer, Southern Railway, letter dated 18131-12-1980 from Tata Engineering and Locomotive Company

Ltd., letter dated 29-6-1985 from Maruti Udyog Limited, letter dated 21-11-1985 from Acma, letter dated4-6-1982 from Ashok Leyland Limited. letter dated 12-4-1985 from Holman-Climax, of order dated

10-7-1985 from Jyoti Limited, purchase order dated 25-10-1985 from J. K. Cement Works, letter dated

10-2-1986 from Hindustan Petroleum Corporation Limited, order dated 19-5-1975 from Ongc, Tel Bhavan,

Dehra Dun, letter dated 16-12-1974 from Ongc, Ahmedabad, letter dated 9-10-1985 from High Explosives

Factory, Kirkee, Poona, letter dated 10-10-1985 from Indian Oil Corporation Ltd., letter dated 28-7-1979 from

Ingersoll-Rand (India) Limited., letter dated 19-9-1979 from U. P. State Road Transport Corporation, letter

from Directorate of Purchase & Stores of the Department of Atomic Energy, letter dated 7-9-1977 from the

Premier Automobiles Limited, Inquiry letter dated 30-11-1979 from Bharat Aluminium Company Ltd., letter

dated 24-5-1982 of Tata Chemicals Limited, letter dated 17-7-1981 from Gujarat Tractor Corporation

Limited, letter dt. 16-3-1982 from Oil India Limited, letter dated 22-2-1982 from Four Wheel Drives,

Australia, letter dated 18-8-1983 from Karnataka State Road Transport Corporation and purchase order dated16121-8-1983 from the Association of State Road Transport Undertakings, New Delhi, are these documents to

which my attention has been drawn by the learned counsel for the plaintiff which do go to show that the

plaintiff has been in this business since 1959 and has been since then running the said business. Similarly my

attention has been drawn to certificates of inspection dated 20th December, 1977 and 5th August, 1977 issued

by the Export Inspection Agency of Government of India: Delhi, which go to show that the plaintiff has even

been exporting its radiators. My attention has similarly been invited to copy or registration-cum-membership

certificate purported to have been issued by Engineering Export Promotion Council to the plaintiff showing

that the plaintiff has been established, since January, 1960. This also shows that the plaintiff has been

registered as a factory also since 25th July, 1961 by the Director" of Industries, Rajasthan, Jaipur. Similarly

photostat copy of registration and license to work as a factory issued by the State of Rajasthan to the plaintiff

has also been filed which shows that amended license was issued on 16th December, 1977 to the plaintiff.There is certificate of registration on form ST-4 which is. valid from 13th August, 1959 in favor of the

plaintiff . Letter dated 14th August, 1964 from National Small Industries Corporation of the Government of

India shows that the plaintiff was enlisted with the said Corporation as well us for supply of automobiles

radiators and engine radiators etc. Similarly is the letter dated 5th May, 1961 from Small Industries Service

Institute of Government of India, enlisting the plaintiff for supply of radiators for cars, trucks and tractors for

participation in the Central Government Stores Purchase Programme. The plaintiff has likewise placed on

record photostat copy of license to manufacture copper and copper alloy tubes in the year 1962 by the Central

Excise. Then there is copy of certificate of registration of the plaintiff as a partnership form with the Registrar

of Firms, Rajasthan, Jaipur, issued on 6th August, 1962. A photostat copy of the partnership deed dated 1st

April, 1973 also has been filed by the plaintiff. Copy of license dated 30th December, 1961 purported to have

been issued by the Chief Controller of Imports & Exports of the Government of India, to the plaintiff for

export of its goods from India has also been filed. There are other certificates of inspection purported to have

been issued by the Export Inspection Agency, Delhi, to the plaintiff on 9th October, 1972, 5th August, 1977,

10th November, 1978 and 20th October. 1977, copies whereof have been filed by the plaintiff. All these

documents further go to confirm that the plaintiff has been in this business since 1959. Thus, prima facie, the

plaintiff has established that the plaintiff has been in existence since 1959 as against defendant which was

incorporated in August, 1985.

(5) My attention has further been invited to the sales statement of the plaintiff for the period 16th November,

1963 to 31st December, 1985 which prima facie goes to show that net sales of the plaintiff during this period

have been of the amount of Rs. 7,38,34,829.00 which by itself is indicative of the fact that the plaintiff must

have acquired distinctiveness as manufacturers and suppliers of various types of radiators under its trade name




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and its trade mark "HINDUSTAN RADIAtorS/H. R." This further goes to show that the trade name

"Hindustan Radiators Co." has become distinctive of plaintiff's business and consequently user of trade name

"HINDUSTAN Radiators LIMITED" by the defendant was likely or calculated to deceive or cause confusion

and injury to the business reputation of the plaintiff. The plaintiff has been in business for the last more than

27 years as against the defendant who was incorporated in August, 1985. My attention on behalf of the

.plaintiff has also been invited to various pamphlets, brochures and souvenirs issued by the plaintiff for

advertising its products which would show that a good amount of money must have been by now spent by the

plaintiff on advertising its goods. Here is a case in which prima facie the plaintiff has established that theplaintiff has been in the business of manufacturing and sale of radiators since 1959 and that the plaintiff has

been even exporting its products in foreign countries and has had sales over rupees seven crores and has spent

a considerable amount on advertisements of its products.

(6) As against this, the learned counsel for the defendant has drawn my attention to four documents which

have been placed on record by the defendant, the first of which is a letter dated 18th January, 1986 from

Hindustan Radiators Corporation, Sanjay Gandhi Chowk, G. T. Road, Panipat (Haryana). to the defendant

which brings out that the former firm is engaged in major repair work of radiators and had been serving the

replacement market only and that they were not in a position to supply Maruti radiators. The other document

is a letter dated 13th January, 1986 from Hindustan Auto Radiators, G.T. Karnal Road, Delhi, to the defendant

giving their quotation for water cooled radiators for Hmt tractors. The third letter is dated 7th February, 1986from Hindustan Radiators Workshop introducing itself to the defendant with an offer of spare capacity for

manufacturing of radiators. There is another dated 10th May, 1986 from Haryana Radiators Limited,

Faridabad (Haryana) addressed to M/s. Asbestos & Belting Co. quoting their rates of Ford radiator. These

letters do not in any manner undermine the case of the plaintiff. The submission of the learned counsel for the

defendant in this behalf is that these letters have been produced on record to show that there are other firms

with practically the same name and even initials in the same activity, which are functioning and the plaintiff

has not brought any case against them or has not challenged their activities and consequently this suit is mala

fide in so far as the plaintiff has chosen to prosecute only the defendant. I do not think this argument would be

available to the learned counsel for the defendant, inasmuch as the plaintiff has in this behalf stated in his

replication to preliminary para 2 of the written statement that "the plaintiffs are not aware about these business

nor have the plaintiffs seen any advertisement issued in any recognised paper in respect of the above said unitsas alleged. It is denied that four units are there for last 25 years. The plaintiffs will take action against those

persons who are openly using the trading style which is deceptively similar to those of the plaintiff's". The

plaintiff has further denied categorically that the trading style of the plaintiff has become common trade

property.

(7) It has further been submitted by the learned counsel for the defendant that the plaintiff is functioning at

Jodhpur and Rajasthan whereas the defendant is to function from Delhi and consequently the right of the

plaintiff would not be infringed by the defendant. However, keeping in view copies of various purchase orders

placed on record, it would be difficult to accept that the activity of the plaintiff is limited only to Jodhpur or

Rajasthan, rather from perusal thereof it can be gathered that the plaintiff has its customers throughout India

and even abroad and consequently it can be safely concluded that the sphere of activity of the plaintiff is also

practically the same as that of the defendant. It is not disputed before me that the nature of manufacturing

activity of the defendant is going to be the same as is that of the plaintiff and even otherwise a reference in

this context may be made to a pamphlet purported to have been issued by the defendant in connection with its

public issue and the share application form which have been placed on record by the plaintiff which by

themselves are enough to corroborate that the nature of manufacturing activity of the defendant is going to be

the same as that of the plaintiff. The fact that the plaintiff has received some awards also is established prima

facie by the pamphlets filed by the plaintiff in this behalf. The names of two firms are almost identical and so

is the name of their products and consequently, there is bound to be a confusion in the mind of the people as

regards the origin of the goods and the submission of the learned counsel for the plaintiff that many an

uneducated, illiterate and wary drivers, who are their would be customers, would likely bedeceived. In these

circumstances, it is safe and logical to prima facie conclude that the extensive, long and continuous user by




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the plaintiff of their trading style "HINDUSTAN Radiators CO." and the trade mark "HINDUSTAN

RADIAtorS/H. R." have come to be well known and have come to be associated in the public mind with their

excellent quality of radiators manufactured by the plaintiff. The mere fact that the plaintiff has filed

application for registration of the trade mark in the Trade Marks Registry, New Delhi, only recently would not

go against the claim of the plaintiff. The plaintiff categorically stated that it was a fortnight prior to the filing

of the suit that it came to notice of the plaintiff that defendant had recently incorporated a company under the

name "HINDUSTAN Radiators LIMITED" and consequently it also cannot be said that the action of the

plaintiff is belated. Trading style and the trade mark of the defendant are similar to that of the plaintiff with avery minute difference and the said difference cannot be brought out in the mind of average prospective

purchasers. In view of the brochure issued by the defendant, it is not unlikely that many a people have started

making inquiries from the plaintiff about their firm being converted into a limited company which would

indicate that the defendant are likely to trade upon the goodwill, name and reputation of the plaintiff which

would cause irreparable loss of business, goodwill and reputation of the plaintiff and would cause deception

and confusion in the public mind as regards the origin of goods likely to be produced by the defendant. There

is nothing which has been brought out to my notice by the learned counsel for the defendant which goes to

suggest that the plaintiff is guilty of mis-representation or suppression of material facts. There is nothing to

suggest that the plaintiff has relinquished its exclusive title in the trading style or trade mark. The mere fact

that the defendant has got its name approved from the Registrar of Companies would not go against the claim

of the plaintiff in any manner whatsoever. In an action for infringement of trade mark or of passing off, inorder to establish a prima facie case for grant of ad interim injunction, it is incumbent upon the plaintiff to

show (a) that plaintiff has been using its trading style and trade mark for quite a long period and continuously

whereas the defendant has entered into the said field only recently, (b) that there has not been much delay in

the filing of the suit for injunction by the plaintiff, (c) that the goods of the plaintiff have acquired a

distinctiveness and are associated in the mind of the general public as goods of the plaintiff, (d) that nature of

activity of the plaintiff and the defendant is same or similar, (e) that the goods of the parties to which the trade

mark of the plaintiff is associated are same or similar, (f) that the user of the said trade mark or trade name by

the defendant is likely to deceive and cause confusion in the public mind and injury to the business reputation

of the plaintiff, (g) that the sphere of activity and the market of consumption of goods of the parties are the

same, (h) that the customers of the plaintiff, inter alia, include uneducated, illiterate and wary customers who

are capable of being deceived or confused or misled. Unless plaintiff's trading style or trade mark has becomecommon property, it would be no defense for the defendant that there are some other concerns who were also

using similar trading style or similar trade mark; as to whether it has become common property is a question

of fact in each case. A perusal of my discussion above would show that the plaintiff in the instant case has

prima facie established all these ingredients which farther leads me to the conclusion that plaintiff has

established a prima facie case for grant of ad interim injunction in the instant matter.

(8) Once a prima facie case is established, balance of convenience would follow. Even otherwise the question

of balance of convenience would arise only when the parties are practically on the same level and as such

their rights are about equal. However, where, as in the case in hand, the plaintiff's position is infinitely

superior to that of the defendant who intends to use the trade mark and trading style of the plaintiff and

consequently, there is no difficulty to hold that balance of convenience lies in the grant of ad interim

injunction as in the instant case inasmuch as the case of the plaintiff is not marginal but a clearcut case and

consequently, balance of convenience is in favor of grant of ad interim injunction prayed for.

(9) Coming to the question of irreparable injury, it needs to be mentioned here that where the plaintiff has

established a prima facie case and the balance of convenience is in favor of grant of ad interim injunction the

Court can assume that irreparable injury would necessarily follow if ad interim injunction prayed for is not

granted. The irreparable injury in the instant case would be the likely confusion that may be caused if the

defendant is allowed to use the mark which is prima facie mark of the plaintiff-petitioner. Even otherwise. it

will take quite some time before this suit is decided and if the respondent is not restrained by means of an ad

interim injunction they would start manufacturing their radiators under same and similar name as that of the

plaintiff-petitioner and would start marking their goods with the offending mark and in course of time it might




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ultimately be held that the defendant-respondent had become common or concurrent user of the said trade

mark. Thus, the likelihood of confusion being caused and likelihood of the plea of common or concurrent user

being raised at a later stage would be the irreparable injury to the plaintiff-petitioner. Even otherwise

injunction would not be refused unless the supposed consequences of deception are remote, speculative and

improbable. Once the plaintiff has established that he has got a prima facie case in respect of same and similar

goods, he would be prima facie entitled to ad interim injunction and heavy burden would lie upon the

defendant to prove that the plaintiff should not be granted ad interim injunction. The plaintiff, in these

circumstances, is entitled to the ad interim injunction prayed for.

(10) No other point has been urged before me.

(11) It may be mentioned here that my discussions above are solely for the purposes of disposal of this I. A.

and have no bearing on the merits of the case which would be decided on the evidence which may be led

before the Court.

(12) In view of my discussion and findings above, I. A. 1989186 is allowed and the defendant, their agents,

servants, stockists and all other persons on their behalf are restrained during the pendency of the suit to use the

trading style 'HINDUSTAN Radiators LIMITED'. and from using the mark 'HINDUSTAN RADIAtorS/H. R.'

in respect of their radiators in any manner whatsoever or to pass off their business and goods as business andgoods of the plaintiff.



hindustan radiators co. vs hindustan radiators ltd. on 11 february, 1987

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