Latha C. Mohan vs Cavinkar Pvt. Ltd. And Ors.

on 18 March, 2003

Madras High Court Madras High Court Latha C. Mohan vs Cavinkar Pvt. Ltd. And Ors. on 18 March, 2003 Equivalent citations: 2003 (26) PTC 498 Mad Author: A Kulasekaran Bench: A Kulasekaran JUDGMENT A. Kulasekaran, J. 1. Application No. 197 of 2003 has been filed praying this Court to grant interim injunction restraining the respondents from passing off their cosmetic goods, inclusive of half care goods by using the trade name Kanya. 2. The applicant/plaintiff has filed the above said suit for permanent injunction restraining the respondents/defendants and their men from infringing or adopting or using the plaintiffs registered trade mark Kanya bearing Trade Mark No. 703898; for permanent injunction restraining the respondents/defendants from in any manner passing off their goods as that of plaintiffs by using the plaintiffs trade name Kanya etc. 3. The case of the applicant is that the applicant has been running the business of beauty parlour in the name and style of Kanya since December 1981, which was also registered under Trade and Merchandise Act to cater to the needs of women with respect to grooming skin care and hair care; that the applicant has been running nine Kanya outlets in Chennai and Bangalore by employing 125 trained women personnel and the salaries of the said personnel is about Rs. 30 lakhs per annum; that the applicant is the pioneer in the field and she was the Founder President of South India Beautician and Hair Dressers Association and now she is the General Secretary of the said Association; that the first respondent is the manufacturer of Cosmetic for a period of two or three years; that the respondents 2 and 3 are advertising agents. While things are such, the respondents has given an advertisement in The Hindu and Business Line dated 13-2-2003 to launch a hair care product in the name of Kanya on 22nd February 2003 and also subsequent days; that the applicant has sent a notice dated 16-2-2003 warning them not to use their trade name Kanya. Even after receipt of the said notice, the respondents have published advertisement in Metroplus of The Hindu dated 18-2-2003 to launch Kanya product; that if the respondents are not restrained from using the applicant's trade name Kanya, it will affect their commercial goodwill and reputation which was built up for a period of 22 years, hence these applications. 4. The case of the first respondent is that it was originally a partnership firm under the name and style of Crane Cosmetics which was later converted into private limited company under the name and style of Cranes Cosmetics Private Limited; that the said company was a proprietor of various trademarks; that it has assigned all the trade marks to and in favour of Beauty Cosmetics Limited by a deed of assignment dated 19-8-1994; that Beauty Cosmetics Limited changed its name as Cavin Care Limited with effect from 21-9-1998; that the 1st respondent has been marketing superior quality of shampoos, herbal shikkakai powder, hair dye, soaps, creams, perfumes, talcum powder, anti-lice preparations, hair care and other cosmetic products and earned great reputation and goodwill in the market; that the first respondent is a Proprietor of various trade marks such as Fairever, Chik, Kanya, Nyle, Indica etc., in respect of the said products, that in the year 1992, the first respondent had honestly conceived the trade mark Kanya; that the first respondent obtained registration of the trade mark Kanya work mark registered under No. 584307B dated 7th November 1992 in Clause (3) covering wide range of goods such as detergents including cleansing agents like shampoos etc.; that the Kanya label mark was also registered by the first respondent under No. 598586B dated 3-6-1993 included in Class 5 in respect of herbal medicinal formulations, medicaments, pharmaceutical preparations etc., that the said registrations have been duly renewed and it is valid as on date; that the first respondent commenced sale of anti-lice preparations under the trade mark of Kanya since 1993; that the first respondent has extensively sold hair care products under the trade mark Kanya through out India for several lakhs of rupees and also made
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Latha C. Mohan vs Cavinkar Pvt. Ltd. And Ors. on 18 March, 2003

wide publicity in print as well as visual media; that the first respondent, with a view to expand his business organised a contest with the advertising agencies. While things are such, the applicant sent the notice dated 16-2-2003 and they have also issued a suitable reply to the said notice and prayed for dismissal of the applications. 5. Mr. U.N.R. Rao, learned Senior counsel appearing for the applicant submitted that in the application, they prayed for injunction against passing off, but no relief has been sought for with respect to infringement as such under Order 39 Rule 1, when in any suit if it is proved by means of affidavit or otherwise, the Court may grant temporary injunction. In support of his contention, the learned Senior counsel relied on document dated 23-11-1991, receipt issued by Corporation of Madras in the name of Kanya Ladies Beauty Parlour, receipt dated 25-1-1982, receipt dated 20-1-1986 issued by Corporation of Madras in the name of Latha C. Mohan to prove that she has been continuously doing the business; receipt dated 22-9-1988, 8-3-1990, 8-8-1990 issued by Corporation of Madras in the name of Kanya Beauty Parlour, receipt dated 25-4-1989, 25-2-1991 issued by Corporation of Madras in the name of Latha C. Mohan; licence issued under Act 287 of Act IV of 1919 for the period ending 31st March 1992 issued in the name of Latha C. Mohan, another licence for the period ending 31st March 1996 in the name of Latha C. Mohan, licence for the period 1994-1995 issued by the Corporation of Madras to run the beauty parlour; licence for the period ending 31st March, 1997, 31st March 1998 and 31st March 1999, issued by the Corporation of Madras in favour of Latha C. Mohan for running the Beauty Parlour; licence dated 28-6-1991 issued by Corporation of Madras for the period ending 1999-2000. The learned Senior counsel also relied on the receipt dated 31-12-2001 issued by Corporation of Chennai for payment of Professional Tax in the name of Kanya Beauty Parlour for the period 1/1999-2000 to 2/2001-2002, the registration certificate dated 2-4-1996 registering the name of Kanya Beauty Parlour, issued by the Registrar of Trade marks. Another receipt dated 04-12-2001 issued by the Corporation of Chennai was relied on by the learned Senior counsel to show that professional tax is being paid by the applicant in the name of Kanya Beauty Parlour. The advertisement made by the applicant in Kanya Quarterly Dossier during April to June 2002, agreement of lease dated 22-11-2001, receipt issued by image equity for a sum of Rs.15.36 lakhs for advertisement, certificate issued by the Officer of UCO Bank dated 18-2-2003 were also relied on by the learned Senior counsel to say that the applicant has been carrying on the business continuously in the name and style of Kanya under the trade name Kanya. The learned Senior counsel also advanced arguments in respect of Pamphlet said to have been issued to the Participants wherein it is stated that there was a brand launched in the early 90's as a herbal anti-lice which was subsequently withdrawn because of the lapse of time 'Kanya' carries no baggage and can be viewed afresh. The said pamphlet was also received by one Gowri, who in turn handed over to the applicant, which is marked as annexure B in the reply affidavit filed by the applicant. Based on the said Pamphlet, the learned Senior counsel advanced arguments that after 1990 the product mark in the name of trade mark Kanya in Clause 3 was withdrawn; that the registered trade mark in Clause 5 had been used by them only for a year i.e., 1993 to 1994 and thereafter it was not been used by the first respondent hence they sought for re-launch on 22-2-2003. It is also canvassed by the learned Senior counsel that the applicant is in the business of beauty parlour by using the trade mark Kanya and the respondents are intending to manufacture and launch their product in the Kanya which is not permissible in Law; that the commercial activities of the applicant and the respondents are in the common field which amounts to passing off; that in the matter of passing off, registration is irrelevant but prior user or adopter is relevant. According to the learned Senior counsel for the applicant, the applicant has been using the trade mark Kanya for the past 22 years continuously. 6. The learned Senior counsel appearing for the applicant relied on the following decisions in support of his case. (i) Whirlpool Co. and Anr. v. N.R. Dongre and Ors., 1996 PTC 415 wherein it is stated in Para 26 as follows:"26. A Division Bench of Delhi High Court which has often been lost sight of as will be shortly noticed, needs to be stated in a little details. It is Century Traders v. Roshan Lal Duggar & Co. It was a case of passing off action. The following principles are deducible from the Division Bench decision:
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Latha C. Mohan vs Cavinkar Pvt. Ltd. And Ors. on 18 March, 2003

(1) The registration of trade mark in the Trade Mark Registry would be irrelevant in an action for passing off. (2) In deciding whether a particular mark is common to the trade, use of that mark would be extremely relevant. Merely registration would not be enough. (3) Registration under the statute does not confer any new right to the mark claimed or any greater rights then what already exist at common law and at equity without registration. (4) The Registration itself does not create a trade mark. The trade mark exists independently of the registration. (5) Common law rights are left wholly unaffected (by registration). Priority in adoption and use of trade mark is superior to priority in registration. ... A single actual use with intent to continue such use co instant confers a right to such mark as a trade mark. (6) It is not permissible to draw an inference as to their user from the presence of marks in the register. (7) A passing off action is an action in deceit. The plaintiff has to prove that either there has been actual passing off or the use of the mark by the defendant has actually caused confusion or damage to the plaintiff, is a proposition which cannot be accepted. Proof of actual damage or fraud is unnecessary in a passing off action, whether the relief asked for is injunction alone or injunction accounts and damages. If there is likelihood of the offending trademark invading the proprietory rights, a case for injunction is made out. The Division Bench has drawn ample support from the view taken earlier by Delhi High Court in L.D. Malhotra Ind. v. Ropi Industries and Prima Chemical v. Sukh Dayal. In this case the plaintiff has no distributor in India due to import restrictions with the result registration was not renewed. It is evident from the above extract that registration of trade mark is not relevant in an action for passing off. In deciding whether a particular mark is common to the trade, use of the mark would be extremely relevant; that the registration does not confer any new right to the mark claimed or greater rights, then what already exist at own law and that equity without registration; that common law right are left to wholly unaffected by registration. Priority in adoption and use of trade mark is superior to priority in registration; that passing off action is an action in deceit and ultimately the Court granted injunction with a direction to the plaintiff to submit an undertaking to indemnify the defendants from any loss or damages which the defendants may incur on account of the proceedings and determination of the suit by another duly constituted legal proceedings in the event of the plaintiffs be held not entitled to the relief sought for. (ii) B.K. Engineering Company, Delhi v. U.B.H.I. Enterprises (Regd.) Ludhiana and another, wherein in Paras-40 and 41 it was held thus:"40. . . We were shown their advertisement in trade journal of 1974 and 1979. It is true that evidence remains to be led by both parties. Of actual damage to the plaintiffs there may or may not be much evidence. The improbability of their proving much is not the same thing as the legal certainty that they can prove nothing. The balance of the whole, in my opinion, tilts in favour of the plaintiffs. Mainly for the reason that the defendants are a new comer as compared to an established trader. On balance I am inclined to grant injunction. 42. The question as this stage is only of a temporary injunction. For that purpose, the misrepresentation complained of is certainly of such a nature as to give rise to a strong probability of confusion in the minds of purchasing public. I refrain from amplifying this point so as not to prejudice any question which may arise to
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Latha C. Mohan vs Cavinkar Pvt. Ltd. And Ors. on 18 March, 2003

damages or permanent injunction. It is sufficient to say that misrepresentation being prima facie, established being in its nature calculated to deceive, the plaintiffs are entitled to a temporary injunction...." In this case, the Division Bench of the Delhi High Court observed that plaintiffs marketing the Cycle Bell under the trade mark B.K. Defendant using the trademark B.K.81 for their cycle bells. Defendants mark is deceptively similar and is likely to cause confusion in the minds of general public and granted injunction. (iii) Ellora Industries, Delhi v. Banarasi Dass Goela, it was held thus"17... .I am satisfied that there is discoverable in all those cases in which the Court has intervened the factor that there was a common field of activity in which, however, remotely, both the plaintiff and the defendants were engaged and that it was the presence of that factor that grounded the jurisdiction of the Court." In this case, the plaintiffs were the registered proprietors of the trademark Elora in respect of watches, time pieces, clocks, spare parts etc. The plaintiffs sold clocks but intended to introduce time pieces. The defendants manufacture time pieces with a distinctive market Gargon but their business name was Ellora Industries which was used conspicuously by them in the advertisement as part of their business. Held it was an action of passing off and also infringement of registered trade mark of plaintiffs. Use of word Elora by the Defendants was indicative of a warm intimacy with the plaintiffs. It is further held by the Court that the word appeals to the ear than eye was real and tangible risk of damage, the field of activity being common, wrongful appropriation of trade reputation was an injury to the plaintiff/ that the injury and the acknowledged intention to infringe was ample justification for injunction. 7. Mr. A.A. Mohan, learned counsel appearing for the first respondent submitted that the first respondent is a registered Proprietor of the Trade Mark Kanya; that the Kanya word mark is registered under No. 584370 dated 06-11-1992 in Class 3 covering wide range of products such as detergents including pleasing for special purpose, shampoos, perfumes, deodorants, hair care products, personal care products, cosmetics and toileteries, face creams, lip salves, preparation for cleaning teeth, mouthwashes, sunscreen creams, lotions, shaving cream, after shave lotion, nail polishes, pomades, brilliantine, cleaning and polishing preparations; that the Kanya label mark was registered under No. 598586-B dated 3-6-1993 included in Clause 5 in respect of herbal, medicinal formulations, medicaments, pharmaceutical preparations. It is also submitted by the learned counsel, that the first respondent used the trade mark Kanya in respect of anti-lice preparations since 1993; that the first respondent also advertised the said trade mark in print media and electronic media. The learned counsel further submitted that the first respondent has a statutory right vested with it to use the trade mark Kanya in respect of the hair care preparations under Section 28 of Trade and Merchandise Act, 1958. Under Section 29 of the Act, infringement can be claimed only against the use of identical or similar mark in respect of the goods for which the mark is registered. According to the learned counsel, the plaintiff has registered the trade mark Kanya Beauty Parlour with a device in respect of books and printed publications as such she cannot claim the relief of infringement against the first respondent from using the trade mark for their hair care products. In order to claim a relief of passing off, the applicant shall establish goodwill and reputation, but the applicant herein has not done so. The learned counsel also disputed the veracity of the documents in Annexure B and prayed this Court not to rely upon the same since it is a post filing of the suit. The learned counsel also submitted that hair care preparations include a wide variety of products such as shampoos, hair oil, hair cream, hair conditioner etc., that the first respondent has established market in respect of anti-lice preparations under the trade mark Kanya, hence the argument of the applicant that the first respondent has stopped using the trade mark Kanya and has tried to make a fresh launch is misconceived. The learned counsel denied the averment that the first respondent has registered trade mark Kanya in Clauses 3 and 5 has used the trade mark in the year 1993 to 1994 and thereafter stopped. It is also further submitted by the learned counsel that in passing off action, the onus lies on the applicant to establish goodwill and reputation, but the applicant herein has failed to establish the same. The learned counsel further states that the word Kanya refers to women as such nobody can claim monopoly in respect of the said word.
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Latha C. Mohan vs Cavinkar Pvt. Ltd. And Ors. on 18 March, 2003

8. The learned counsel appearing for the first respondent relied on the following decisions in support of his contentions. (I) Reckitt & Colman Products Limited v. Borden Inc., and Ors., (1990) 1 All ER 873 wherein it stated as follows: "The House of Lords have summarised the elements, which are required to be proved in an action for passing off. (i) He must establish a goodwill or reputation attached to the goods or services. (ii) He must demonstrate a misrepresentation by the defendant to the publications. (iii) He must demonstrate that he suffers or in a quia timet action that he is likely to suffer damage by reason of the erroneous belief engendered by the defendant's misrepresentation that the source of the defendant's goods or services is the same as the source of those offered by the plaintiff." (II) Ervin Warmink v. J. Townend & Sons, (1979) 2 All ER 927 wherein it is stated thus:"The House of Lords identified 5 characteristic to be present in order to create a valid cause of action for passing off; (1) a misrepresentation (2) made by a trader in the course of trade (3) to prospective customers of his or ultimate customers of goods or services supplied by him (4) which is calculated to injure the business or goodwill of another trader (in the sense that this is a reasonable foreseeable consequence, and (5) which causes actual damage to a business or goodwill of the trader by whom the action is brought. (III) Cadila Healthcare Ltd. v. Cadilla Pharmaceutical, wherein the Hon'ble Supreme Court has laid down the following factors for consideration in a passing off action which runs as follows:"(i) The nature of the marks, i.e. whether the marks are word marks or label marks or composite marks i.e., both words and label works; (ii) The degree of resembleness between the marks, phonetically similar and hence similar in idea; (iii) The nature of goods in respect of which they are used as trademarks. (iv) The similarity in the nature, character and performance of the goods of the rival traders: (v) The class of purchasers who are likely to buy the goods bearing the marks they require, on their education and intelligence and a degree of care they are likely to exercise in purchasing and/or using the goods, (vi) The mode of purchasing the goods or placing orders for the goods; and (vii) Any other surrounding circumstances which may be relevant in the extent of dissimilarity between the competing marks. (IV) Vishnudas v. Vazir Sultan, AIR 1996 SC 275 : 1996 PTC 512(SC) wherein the Hon'ble Supreme Court has held that a manufacturer having no bona fide intention to trade in or manufacture all goods or articles falling under broad classification. Therefore, he cannot be permitted to enjoy monopoly in all articles carrying under such broad classification. (V) Corn Products v. Shangrila Food, wherein the
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Latha C. Mohan vs Cavinkar Pvt. Ltd. And Ors. on 18 March, 2003

Hon'ble Supreme Court held as follows:"It seems clear to us that what is necessary is that the reputation should attach to the trademark, it should appear that the public associated that trademark with certain goods. A trademark may acquire reputation in connection with the goods in respect of which it is used, through a buyer may not know who the manufacturer of the goods is. (VI) Kedar Nath Gupta v. J.K. Organisation, 1998 (18) PTC 189 wherein it is stated thus: "The application for registration used a part of trading style of the opponent as trademark for its goods. However, the opponent was not using the trademark in relation to goods. The Delhi High Court held that the opposition is not maintainable. Simple similarity in the name in the trademark alone is not sufficient to make out a case either of infringement or passing off for in both cases, confusion or deception is an essential element. For ascertaining confusion, one has to examine (a) the nature of the 2 marks including the letters used, the style of using letters, the device in which they have been used, the colour combination of the trade mark; (b) the class of customers (c) the extent of reputation (d) the trade channels (e) the existence of any connection in the course of trade; and (f) all other surrounding circumstance." (VII) Wander v. Antox, 1990 IPLR 225 (SC): 1991 PTC 1(SC) wherein the Apex Court held that "the tort of passing off involves a misrepresentation made by a trader to his prospective customers, calculated to injure as a reasonably foreseeable consequence, the business of goodwill of another, which actually or probably causes damage to the business or goodwill of the other trader." (VIII) Coromandal Fertilizers v. Coromandel Cements, 1991 IPLR 105 : 1991 PTC 164(Mad) wherein it is stated thus:The Madras High Court held that the word COROMANDEL is not an invented term. Several companies and concerns with the name Coromandel are doing various kinds of business. The plaintiff as the user of this word, for the purpose of fertilizers since 1961, is entitled to claim exclusive user of the word in the manufacture and sale of fertilizers. But, it cannot claim such a right of exclusive user in respect of cement, which it has started manufacturing only in 1984. On the other hand, it is the defendant, which has registered its name as Coromandel Cements Limited, in 1978 itself, though it has not yet started production. By virtue of prior adoption, it is the defendant, who can claim the right of exclusive user of the word COROMANDEL for cement. The plaintiff is not therefore, entitled to any injunction restraining the defendant from using the word COROMANDEL for its cement. (IX) John Walker v. Rothmans International, (1978) FSR 357 wherein it is stated thus:"The Chancery Division observed that there was no product confusion. In a case of alleged name confusion, there are, of course, two essential ingredients of the tort. First, there must be proof or prospect of damage. Whether it is enough to prove a reasonable possibility of damage or whether the likelihood of damage must be established and the extent to which the Court will infer a possibility of likelihood of damage in the absence of direct proof, once name confusion is shown to exist are matters, which have not been fully debated before me and cannot, in my view, profitably be explored at this stage. 9. The point that arise for consideration in this application is whether the applicant is entitled to injunction as prayed for? 10. It is stated by the applicant that she has been running beauty parlour for women under the name and style of Kanya Beauty Parlour since 1981. It is further stated by the applicant that she has been running nine outlets in Chennai and Bangalore by employing 125 trained personnel. It is also admitted by the applicant that she is not manufacturing or selling any beauty care products under the trade name Kanya; that the first respondent
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Latha C. Mohan vs Cavinkar Pvt. Ltd. And Ors. on 18 March, 2003

has been manufacturing and marketing cosmetic products under the trade name Kanya; that the commercial activities of the applicant and the first respondent have a common field. According to the applicant, she has been using the trade name Kanya for her beauty parlour since 1981 as such she is the prior user/adopter of the said name, however the trade name Kanya has been registered by the applicant only on 2-4-1996 in Clause 16. It is also canvassed by the applicant that though the first respondent has registered the trade name Kanya, it was used only for a couple of months and they could not continuously use it, which is evident from document given in Annexure-B. 11. It is the case of the first respondent that they have been marketing cosmetic products in the name of Fairever, Chic, Kanya, Nyle, Indica etc., from the year 1992 and the trademark was registered in Clause 3 on 07-11-1992, in Clause 5 on 3-6-1993. It is claimed by the first respondent that they have registered the trademark Kanya much earlier than the applicant, hence they are the prior user/adopter. 12. Sub-section (2) of Section 27 of Trade and Merchandise Act though forming part of Section 27, it's over riding effect is not confined to merely on the provisions of Sub-section (1), but it has an overriding effect on all the other provisions of the said Act. Section 27(2) of the Act provides that insofar as the common law action for passing off is concerned, the provisions of this Act do not have any effect or the remedy. Hence, the registration does not confer immunity against passing off action. Followed Whirlpool Co. and Anr. v. N.R. Dongre and Ors., 1996 PTC 415. 13. This application has been filed under Order 39 Rule 1, CPC seeking to grant an interim injunction restraining the respondents from passing off their goods. The common law remedy is provided on the simple principle that nobody has any right to represent his goods as the goods of somebody else. A man is not to sell his goods or services under the pretext that they are those of another man. 14. Now, I proceed to verify the available materials placed by the respective parties. The applicant relied on the tenancy agreement dated 30-10-1981 entered into between herself and the landlady to run Beauty Parlour in the name and style of Kanya Beauty Parlour. The said agreement has been renewed by another agreement dated 31-5-1984 between the same parties for a further period; receipt dated 23-11-1981 issued by Corporation of Madras in the name of Kanya Beauty Parlour. A receipt dated 10-10-1985 issued by Euroka Forbes Limited for purchase of machineries in the name of the applicant; reply dated 19-5-1987 issued by the applicant addressed to the Deputy Commissioner of Labour, Chennai-600 035 seeking to drop penalty proceedings initiated against Kanya Beauty Parlour; another tenancy agreement dated 2-5-1998 entered into between the same parties to show that the beauty parlour is being run continuously in the said premises under the name and style of Kanya Beauty Parlour; receipt dated 22-9-1988 issued by Corporation of Madras towards professional tax in the name of the applicant; receipt dated 8-8-1990 issued by the Corporation of Madras in favour of Kanya Beauty Parlour for payment of professional tax; telephone bill dated 7-4-1991 in the name of Kanya Beauty Parlour in respect of the telephone installed in the applicant's premises; certificate dated 11-8-1992 issued by Shannaz Hussain's Herbal appointing the applicant to have their franchise at Mylapore, Chennai, notice dated 31-12-1992 issued by Income Tax authorities addressed to the applicant restraining her from paying rent to her landlady under 26(1)(i) of the Income Tax Rules; Insurance policy issued by Oriental Insurance Company dated 12-4-1993 insuring Kanya Beauty Parlour; publications made in a trade mark journal dated 2-4-1996 for registration in Clause 16 effected by the applicant. The first respondent has relied on registration certificate dated 06-11-1992 registering the trade mark Kanya in Clause 3 and registration certificate dated 3-6-1993 in Clause 5, which according to the first respondent are documents earlier in point of time. On consideration of the documents filed by both sides, I am of the considered view that the applicant is the prior user of the trade name Kanya and she is also continuously using the same. 15. Now, I proceed to see whether the applicant is entitled to injunction as prayed for or not. The learned Senior counsel appearing for the applicant advanced argument that the applicant has been carrying on the business in the field of grooming skin care and hair care and running nine outlets in Chennai and Bangalore
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Latha C. Mohan vs Cavinkar Pvt. Ltd. And Ors. on 18 March, 2003

by employing 125 trained women professionals. The case of the first respondent is that they have been marketing superior quality of Shampoos, herbal Shikkakai powder, Hair Dye, Soaps, Creams, Perfumes, Talcum Powders, Anti-lice preparations and other cosmetic products. 16. The concept of the beauty parlour is applying the art for beautifying the body. Cosmetics are being applied to body for beautifying. The application of art and cosmetic is called Cosmetology. Hence, I am of the view that both the parties are in the same field. There is likelihood of diversion of trade from the applicant to the first respondent. Followed Cadila Healthcare Ltd. v. Cadilla Pharmaceuticals, . 17. Mr. A.A, Mohan, learned counsel appearing for the first respondent has advanced arguments that unless the applicant prove reasonable possibility of damage or there is likelihood of damage is established, the applicant is not entitled to interim order sought for. The intention of the trade mark is to identify the source of manufacture of goods. In the market, the chief value of the trade mark is its power to stimulate sales. The action of passing off is essentially a cause of action arising out of confusion. There is a real and tangible risk of damage since the field of activities being common. The wrongful appropriation of trade reputation is an injury. That injury and the acknowledged intention to continue to inflict it is ample justification for injunction - relied Ellora Industries, Delhi v. Banarasi Dass Goela, . Hence, I hold that the applicant has established the likelihood of damage. The applicant has shown clear necessity for affording immediate protection to her alleged right and interest which should otherwise be seriously impaired. Hence, I hold that the applicant is entitled to injunction as prayed for. 18. Considering the facts and circumstance of the case, I direct the applicant to file within two weeks necessary affidavit of undertaking to indemnity the first respondent from any loss or damage which it may incur on account of this proceeding in the event of applicant is held not entitled to the relief sought for in the suit. 19. In the result, this application is allowed. No costs. However, it is made clear that the observations made in this order is only for the purpose of determination of this application and nothing stated herein shall be taken into consideration at the time of disposal of the suit on merits.

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