The plaintiff had expanded his business by incurring substantial expenditure on advertisement and by incorporating the word Muktajivan in all stationery materials, letter-heads, invoices, albums, hoardings, sign-boards etc. The defendant no.1 who was carrying on his similar business in the name and style of Gokul Studio intending to commence business through his wife, the defendant no.2 by adopting the name and style of Muktajivan Colour Lab and Studio.
The passing off action was initiated by the plaintiff. The Supreme Court observed that the definition of trade marks under the Trade Marks act, 1999 was very wide and meant a mark capable of being represented graphically and which was capable of distinguishing the goods or services of one person from those of others. Mark include amongst other things name or word also. Name include any abbreviation of a name. The Supreme Court observed that in an action for passing off it was usual, rather essential, to seek an injunction temporary or ad-interim. The principles for the grant of such injunction are the same as in the case of any other action against injury complained of. The plaintiff must prove a prima facie case, availability of balance of convenience in his favour and his suffering an irreparable injury in the absence of grant of injunction. According to Kerly, passing off cases are often cases of deliberate and intentional misrepresentation, but it is well-settled that fraud is not a necessary element of the right of action, and the absence of an intention to deceive is not a defence though proof of fraudulent intention may materially assist a plaintiff in establishing probability of deception. As to how the injunction granted by the Court would shape depends on the facts and circumstances of each case. Where a defendant had imitated or adopted the plaintiffs distinctive trade mark or business name, the order may be an absolute injunction that he would not use or carry on business under that name.
On the issue that the business name sometimes adopted by the plaintiff used QSS as prefixed to Muktajivan Colour Lab or as part of the full name and that made the difference, the Court agreed with the plaintiff that QSS was an abbreviation, the elongated or full form whereof was Quick Service Station and that was merely an adjective prefixed to the name. It was the word Muktajivan the employment of which makes distinctive the business name of the plaintiff and it was the continued use of Muktajivan in the business name of the plaintiff which had created a property therein linked with the plaintiff. The Court thus held that a clear case for the grant of an interim injunction was prayed for by the plaintiff.