Deceptively Similar Trademark case
Under this case, the appellant No. 1 is the sole proprietor of the firm named and styled as ‘Saboo Sons’ along with Saboo Decopride’, which is a private limited company registered under the Companies Act, 1956. According to the appellants, they were engaged in the business of marketing, selling and providing bed sheets, bed covers, mattresses from the year 1960 under the name ‘Saboo Textiles’. As the said business grew up and required more space and attention, the appellant No. 1 in the year 1987 started his independent business under the name and style as ‘Saboo Sons’. The appellant No. 1’s other brothers also carry on their business under the names as ‘Saboo Fab’, ‘Saboo Furnishings’, Saboo Weaving Industries’, Saboo Textile Industries’, etc. Thus, the entire business of the members of the appellant No. 1’s family is being run under the name beginning with a word ‘Saboo’ which is the surname of the family.
According to the appellants, they have been advertising the name and putting all efforts, time, money, energy and skill to popularise their trade name “Saboo Sons”. To the appellant’s surprise, they found that the respondents who were carrying their business under the name ‘Mahesh Textiles’ suddenly changed their tradename to ‘Saboo Collections’. The appellant is of the view that the respondents did this with dishonest and mala fide intention only to cash in the goodwill and reputation which was acquired by the appellants. The trade name used by the respondents is identical and deceptively similar to the trade name and an attempt to pass off their goods of the appellants, and that is why the appellants had filed applications for temporary injunctions and restraining the respondents from carrying on business of marketing, selling, stocking, offering for sale, exhibiting, advertising or otherwise dealing in bed covers, bed sheets, furnishing fabrics, mattresses etc., or any other cognate or allied goods under the trade name, beginning with or consisting or comprising the word “Saboo” or any other trade name/firm name beginning with or comprising or consisting of the word ‘Saboo’.
On the other hand, the respondents contended that the firm ‘Saboo Textiles’ was initially started by the fathers of appellant no 1 and respondent as a joint family venture. According to the respondent Brahmanand Saboo, the proprietor of respondent firm, was initially carrying on the business in bed sheets, ted covers, etc. with his father Hiralal under the name and style as ‘Mahesh Textiles’ but on gaining experience and knowledge in May, 1998 he started his independent business under the name and style as ‘Saboo Collections’, which in fact is one of the branches of ‘Mahesh Textiles’ but the appellants suppressed all the material facts. The main bone of contention between the parties was that whether the respondents by adopting the name ‘Saboo Collections’ were guilty of a deceptively similar trademark and passing off their goods & services. The law relating to passing off is that no one is entitled to carry on his business in such a way as to lead to the belief that he is carrying on the business of another man or lead to belief that he is carrying on or has any connection with the business carried on by another man.
To prove that their case was strong, the appellants cited the case of Bajaj Electricals Limited, Bombay v. Metals & Allied Products, Bombay and Anr along with Kirloskar Diesel Recon Pvt. Ltd. and Anr. v. Kirloskar Proprietary Ltd. and Ors. On the other hand, the respondents referred the decisions in Shri Gopal Engg. & Chemical Works v. POMX Laboratory, S.M. Dyechem Ltd. v. Cadbury (India) Limited, Bagla and Co. v. Bagla Cosmetics and Carew Phipson Limited v. Deejay Distilleries Pvt. Limited. After going through the cases referred by both the parties, the court was of the view that none of the cases referred were applicable to the facts of the current case. The court also said that the documents such as letters, bills, receipts, invoice forms, octroi receipts, cash-memos were under the trade name of the appellants and the use of similar or identical trade name by the respondents caused deception and created confusion in the minds of the customers as well as other dealers. It was also contended by the respondents that another member of Saboo family dealt with similar business since 1987 under the name and style as Saboo Brothers’ but the appellants had not taken any action against him as they believed that the appellants had some personal grudge against the respondents and that is the main reason for filing the case to which the appellants replied that they will also take action against that another member later.
The result was that the respondents/defendants, their servants, agents, dealers, distributors, stockists, representatives and any other person on their behalf were restrained from carrying on business of marketing, selling, stocking, offering for sale, exhibiting, advertising or otherwise dealing in bed covers, bed sheets, furnishing fabrics, mattresses etc., or any other cognate or allied goods under the trade name, beginning with or consisting or comprising the word “Saboo” or any other trade name/firm name beginning with or comprising or consisting of the word ‘Saboo’ till disposal of the said case.
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