D.P. DESAI, M.P. THAKKAR

(1) One will have to reflect a great deal before saying What is in a name for everything centers around a name (Cibatul Simatul ) in the battle between two business houses giving rise to the present appeal. And the question debated before the Court is as to whether the trial Court was right in holding that the name Simatul Chemical Industries Pvt. Ltd. under which the appellant defendant is doing business is so deceptively similar to the name of the respondent plaintiff Cibatul Limited that the public at large and the consumers are likely to be deceived into believing that they are dealing with the same Company or Companies having some connection or association with each other and that in order to protect the plaintiff Company from its goodwill being invaded and in order to prevent confusion among the public at large and consumers it was necessary to restrain the defendant Company from carrying on business under any name and style comprising the words Simatul or Cibatul or any other word comprising the plaintiffs name and style so as to represent or induce into believing that the defendant Company is the same as the plaintiff Company or that the goods manufactured and sold by the defendant Company are the goods manufactured and sold by the plaintiff Company.

(2) A public limited company known as the Atul Products Limited is engaged in the manufacture of dyes and chemicals of various types since 1947 In collaboration with a Swiss Company with international reputation in the sphere of manufacture of dyes and chemicals known as Chemical Industry of Bezal which is known in the international market as CIBA it floated a Company in 1960 under the name and style of Cibatul which represents the names of the two collaborating Companies (Ciba + Atul). In other words it is a fancy or coined name under which the plaintiff Companies carrying on its manufacturing and business activities. The plaintiff Company commenced the manufacture of a chemical known as Formal dehyde in about June 1973. This chemical is used as raw material for the manufacture of other chemicals resins etc. The defendant Company was formed in order to manufacture Formaldehyde the commercial production of which was expected to start in about June 1974. It registered itself as a public limited Company under the name Simatul Chemical Industries Pvt. Ltd. Simatul the first word in the name is a coined or invented word. It is the case of the plaintiff-Company that the name Simatul is deceptively similar to the name of the plaintiff company Cibatul and it was calculated and likely to mislead or confuse the public at large the consumers and those who were dealing with the plaintiff Company into believing that both the Companies were same or were connected or associated with each other and that the goods and products manufactured by the defendant Company were the goods and products manufactured by the plaintiff Company.

(3) It was not disputed in the trial Court and it is not disputed before this Court; that the plaintiff Company Cibatul Limited has acquired considerable reputation in the business world in the sphere of manufacture of chemicals. Apart from the concession made by the counsel for the defendant Company in the trial Court and in this Court this part of the case was not disputed even by the witnesses of the defendant Company. It is not necessary therefore to examine the evidence pertaining to this aspect. A conclusion has been firmly recorded that the plaintiff Company has acquired an India wide reputation in the sphere of manufacture of cheMicals in the business world and its products are very well known. The defendant Company was incorporated in February 1973 and commenced commercial manufacture of Formaldehyde in October 1974. It therefore appears that the defendant Company with the fancy name adopted by it came to be formed some 13 years after the incorporation of the plaintiff Company. The controversy in this appeal revolves around two principal issues: (1) Whether the name Cibatul which forms a part of the name of the plaintiff Company and the name Simatul which forms a part of the name of the defendant Company are so similar that confusion is likely to be created amongst those who are dealing with the plaintiff Company and the public at large and the consumers; and (2) Whether the plaintiff Company has a legal right to prevent the defendant Company from carrying on its business in the present name in case the Court comes to the conclusion that the two fancy names are deceptively similar.

(4) So far as the first point is concerned on the question regarding similarity or otherwise of these two fancy names there is oral evidence which has been accepted by the trial Court in support of the finding recorded in favour of the plaintiff Company. P.W. 2 a dealer in chemicals says that the customers were in fact confused by the similarity. So do P. W. 3 and P. W. 5 other two dealers. The trial Court has accepted their evidence and we see no good reason to differ from the assessment made by the trial Court. The question will have however in substance to be decided on our own assessment as regards similarity and likelihood of confusion. If it were otherwise parties can always offer oral evidence both for and against. Some witnesses may say that the names are similar and are likely to cause confusion others may say that they are not similar and not likely to confuse and that in fact they themselves were not confused. The decision cannot be made to depend on the opinion expressed by the wit nesses examined at the trial It is a matter on which the Court itself has to reach its own conclusion. If it acts merely on the evidence of witnesses then it would be abdicating its function of deciding whether the two names are decentively similar or not in favour of witnesses who were examined at the trial. No doubt the Court will have to keep in mind the hypothe tical person with whom the parties may enter into dealings and the hypothetical consumer. All the same ultimately the Court must form its own opinion on this question. This proposition was enunciated in Bayton v. Snelling 17 R. P. C 628 has been affirmed in Ouvah Ceylon Estates Ld. v. Uva Ceylon Rubber Estates Ld. 27 R. P. C. 645 Ouvah Ceylon Estates Ld. v. Uva Ceylon Rubber Estates Ld 27 R. P. C. 753 and the matter is placed beyond controversy by the Supreme Court in Corn Pro ducts Refining Co. v. Shangrila Food Products Ltd. A.I.R. 1960 S. C. 142. The test to be applied is the test of an average person with imperfect recollection. One has to visualize a customer or a tradesman or a citizen who may happen to have dealings with the Company concerned or who may happen to want to purchase the goods manufactured by the Company concerned. Having regard to the facts of the present case inasmuch as no separate trade mark or name is given to the goods manufactured by the Company the goods will be known by the name of the Company by which they are manufactured and the consumer will demand the goods manufactured by mentioning the name of the manufacturer. The question is whether such a customer entering into dealings with the Company or effecting purchases of the goods manufactured by the Company would get confused and whether an ordinary citizen who may have occasion to deal with the Company in the course of business dealings would mistake one for the other. It would not be right to apply the test of a man of extra ordinary memory who remembers the spelling of the name of each Company or a person who jots down meticulously and methodically the names of Companies in his diary and brings out his diary and contemplates whether he is dealing with one Company or the other. We are concerned in the present case with the user of fancy or invented names The word Cibatul used by the respondent plaintiff Company in its name is a fancy or invented word. So also the word Simatul used by the appellant defen dant in its name is also a fancy or invented word. it is neither incumbent nor necessary nor natural for the defendant Company to use the said word in its name. It is a word that the appellant Company has deliberately invented and deliberately used. It is the case of the respondent plaintiff that this has been done fraudulently and purposefully with a deliberate view to secure unethical and undue advantage of the goodwill earned by the similar name used by it in respect of its well known products and that it was done by way of invasion of the plaintiff Companys proprietary right in its goodwill. It is complained that this was done with a view to create an impression amongst the trade and the persons dealing with the defendant company that they were dealing with the plaintiff-company We will examine this aspect a little later. For the present we propose to consider the question whether the two names are so deceptively similar as to cause confusion amongst the persons dealing with these Companies and whether the plaintiff Company is justified in taking exception to the use of the word Simatul in its name The two words Cibatul occurring in the name of the plaintiff Company and Simatul occurring in the name of the defendant Company may be placed in juxtaposition from the stand point of the visual test as also from the standpoint of the phonetic test. The following features deserve to be emphasized in this connection :

(1) Both the words Cibatul and Simatul are made up of seven letters. (2) In both the words the name Atul is a common component and constitutes the last four letters of the word. (3) Phonetically the first letters in both the words are similar inas much as Ci and Si are spoken or pronounced in an identi- ical manner. (4) To an average person with imperfect recollection both the words would appear to be so similar that one will not suspect that one is dealing with the one and not the other and vice versa.

(5) As against these features the only paints of difference that could be pointed out were:

(1) That the word Simatul in the defendant Companys name commences with S whereas the word Cibatul in the plaintiff Companys name commences with the word C; (2) That the third letter in the name of the defendant Company was m whereas the third letter in the name of the plaintiff Company was b. Now so far as the first point of difference is concerned as we have already pointed out phonetically the letters Ci and Si are pronou nced in an identical manner. It is therefore in reality no point of disti nction at all when the name is spoken or uttered. So far as the second point of distinction is concerned it is no doubt true that in the plain tiffCompanys name the letter b is used whereas in the defendant Com panys name the letter m is used as the third letter. But both the letters are followed by identical letter a. And ba and ma are labiels and as found by the trial Court are calculated to cause confusion or get mixed up when spoken face to face or on telephone. Besides the point of diffe rence is so very small that only a person with extraordinary memory and recollection or a most meticulous and careful person would notice the distinction or difference. As we observed earlier we cannot apply the test of a meticulous or a methodical person who notes down the names in the diary and makes a comparison every time he enters into dealings or a person with a photographic memory or a memory much better thin that of an average person. We have to apply the test of an average per son with average memory and imperfect recollection. We must also not forget that the products manufactured by the two Companies are mark eted all over India ill different provinces and the same may also be exported to foreign countries. And the similarity in the names may have to be examined from the standpoint of persons speaking different languages whom one cannot expect to notice these very minor differences which do not detract from the general impression of similarity created by the salient features pinpointed earlier in the course of the discussion. The points of similarity far outweigh and out number the points of difference so much so that we have no hesitation in concluding that the finding recorded by the learned trial Judge is unexceptionable. Be it realised that it is not necess- ary for the plaintiff to show that the words are identical. The plaintiff has not set out to establish that it is a question of the user of an identical name. The plaintiff has simply undertaken to show that the two names are so deceptively similar that there is a likelihood of confusion amongst the per sons dealing with the two Companies. Again the danger is not only one sided. It is a double edged danger which cuts both ways. Even the defen dant Company if it acquires a reputation in India or international business community in regard to its products it would be exposed to the same risk vis a vis the plaintiff Company. Why does the defendant Company then insist and insist with perseverance and tenacity that this state of affairs should continue According to the plaintiff Company it is not by accident or co incidence or by chance that the defendant-Company finds itself in the present situation. It has been done complains the plaintiff- Company deliberately and purposefully with an eye on stealing the good will of the plaintiff Company. It is therefore appropriate to consider at this juncture the circumstances in which the defendant Company hit upon the fancy or invented word Simatul in formulating its name. It is intere sting to note that in paragraph 13 of the affidavit in-reply at Ex. 8 filed by Shri V. R. Patel the Secretary of the defendant Company in answer to the Notice of Motion taken out by the plaintiff it was in terms admit ted as under:

I further state that while applying for registration we had proposed some 14 names of the Company to the Registrar of the Companies. However most of the names were rejected on the ground of similarity by the Registrar and finally the name Simatul Chemical Industries Private Ltd. was approved by the Registrar of the Companies Gujarat State A very crude attempt was made to extricate himself from this situation by D. W. 2 Shri V. B. Patel in his evidence Ex. 85 wherein under cross examination he stated as under: I cannot say if the Registrar had rejected 13 out of 14 names proposed by the company because most of them were similar to existing companies I do not know if the relevant portion stated in paragraph 13 of my affidavit and to which I have referred in my chief examination is true or not. This clearly shows that somehow the defendant Company was in a des perate search of a name similar to that of an existing Company. The next question which may be examined in this context is as to how the defendant Company came to strike upon the word Simatul. Was it by chance was it by misfortune was it by accident At Ex. 22 is a report appearing in a daily newspaper published from Surat Gujarat Mitra in the issue of 29 6 73. After giving the particulars of the Company about its production capacity working capital etc. the news item (which presumably appears to be based on a handout) in its last paragraph ad verts to this aspect. The said paragraph may be quoted : *** *** It is somewhat strange that in a report of this nature a reference is made to reason why the word Sima has been selected. It has been stated that the entrepreneur belonged to well known Sima family and an expla nation is offered almost by way of an apology to the effect that the name Sima is derived from the name of the founder of the family namely Shivdas Madhavdas Patel. The report is in Gujarati. Now there is consi derable difference between the Gujarati spelling of the name Sima and the first two letters of the name of Shivdas Madhavdas Patel as it is spelt in the report itself. The name of the Company is *** whereas the first letters of the name of the defendant as menti oned in the report are ***. Two points must be made in con nection with the aforesaid discussion (i) that an explanation is offered for coining the name Sima and (ii) that the explanation offered is that it is derived from the name of Shivdas Madhavdas the founder of the firm. Now the very fact that an explanation regarding the coining of the fancy name is given in a report of this nature gives rise to some suspicion in the background of the comment made by the plaintiff that the defendant Company was creating an alibi in advance and had a guilty conscience. Why else was it necessary to offer an explanation for coining an invented word to be used in the Companys name Secondly even this attempt is a crude attempt in the sense that whereas in the report itself the name of the founder is shown as *** the word inven ted is ***. And what causes great surprise is the fact that in the Court an additional excuse is offered for selecting this word namely that it is a combination of the name of a girl and a boy from the families of the Directors. As against this it is not even stated on oath by any of the witne sses of the defendant Company that the family of the entrepreneurs who promoted the Company was known as Sima family as was declared in the handout. It was stated that it was a joint family concern and that the name Simatul was selected or coined by picking up the first two letters in the name of grand father of the Managing Director of the Company Shivdas Madhavdas Patel. In the same breath it was stated that one Naranbhai was a co promoter of the defendant Company and was a younger brother of the Managing Director and that Sima was the name of Naranbhais daughter. It was furthermore stated that the name Atul was the name of the son of the Managing Director Visabhai and that the invented name Simatul was the result of combination of two nam es Sima the name of the daughter of the younger brother of the Mana ging Director and Atul the name of the son of the Managing Director. Such was the stand taken in the written statement. And in the evidence D. W. 1 Visabhai Bhaichandbhai Patel the Managing Director stated as under : I had myself selected the word Simatul for our Company and had myself coined it. My younger brother Naranbhai was a co promoter of our company with me. The name of his daughter is Sima The name of my son is Atul. There. fore we combined these two names and converted into one word Simatul for the purpose of our Company. the name of my paternal grandfather was Khodidas Madhavdas Patel R. The defendant company is a venture of our joint family and therefore we wanted to perpetuate the name of our grandfather by selecting the first two letters of his name and his fathers name and they are Si Ma to make one word Sima. we never write our grand fathers name Sivdas as Shivdas but only as Sivdas. Exh. 10/6 is the Share certificate issued by the relevant co operative society in favour of my father. There also the name of my grand father is written as Sivadas. To us it appears that it is a very laboured and naive attempt to explain why the name Simatul has been invented. At first an attempt was made to explain merely the word Sima and then when it was realised that an explanation was also necessary for the last four letters which contained identical name Atul used by the plaintiff Company a fresh explana tion was invented. We are not prepared to accept this facile explanation too readily. It appears that it has been done deliberately and pur posefully with a view to invent a name similar to the name of the plain tiff Company. We are not prepared to accept the innocent and innocuous looking facial make up which is too naive to carry conviction. We may also point out that the plaintiff Company had addressed a communica tion dated January 31 1974 to the defendant Company in this connection by Registered Post. The said communication Ex. 25 was in the following terms : Sub: Similarity in name CIBATUL Limited was registered as a Corporate Body with the Registrar of Companies. Ahmedabad under the Companies Act 1958 on 7 1960. At present we are manufacturing Formaldehyde and other products at Atul. We have noticed from the recent advertisement in the newspapers that you are putting up a plant for the manufacture of Formaldehyde. We are worried about the similarity in the name of your company and that of ours and as such we are afraid that there may be confusion in the minds of the public regarding the identity. In fact some of the parties have approached us for formaldehyde referring to your Advertisement in the newspapers. We are sure that SIMATUL a name similar to ours must have been chosen by you inadvertently and not deliberately and that you have no intention of either passing your goods as our goods or creating confusion in the minds of the public in general. The name of our company CIBATUL has been in use for over 13 years and the name of your company which resembles to ours is therefore highly objectionable. May we therefore request you to take necessary step to change the name of your company to avoid complication and confusion. The defendant company replied thereto as under by letter Ex. 27 We are in receipt of your letter dated 31st January 1974 and noted the con tents thereof. In this connection we have to state that the name of our company i.e. Simatul Chemical Industries Pvt. Ltd. has been allowed to us by the Registrar of Com panies Gujarat for registration purposes and we are sure that the Government must have considered all the pros and cons/factors before allowing us this name. You may note that our company was registered as a private limited company with the Registrar of Companies Gujarat on 9 2 1973. However there is a vast difference between the names of the two companies and they are too distinguishable to mislead anybody. We want to assure that we have no intention to mislead anything nor to create confusion in the minds of public in general. We have our own entity and identity as Simatul Chemical Industries Private Limited and it cannot be said similar to Cibatul Limited and hence never objection. able. This matter may therefore be treated as closed. It therefore appears that notwithstanding the fact that at a very early stage the plaintiff company had pointed out that the names were very much similar and there was a likelihood of confusion even then the defendant company persisted in its attitude and insisted on using the said name. In our opinion the learned trial Judge was right in recording a finding adverse to the defendant Company in this connection

(6) Having concurred with the finding recorded by the trial Court that the name Simatul which forms a part of the name of the defendant Company is deceptively similar to the name Cibatul which forms a part of the name of the plaintiff Company and that confusion is likely to be created in the mind of the public at large and the consumers the next question which arises is whether the plaintiff Company has a legal right to prevent the defendant company from carrying on its business in the name in which the word ;Simatul or a similar word is used. That the plaintiff_ Company can claim an injunction restraining the defendant company from carrying on its business in such a deceptively similar name can scarcely be disputed in view of decisions rendered by English Courts going back to 1898 and d decision of the Bombay High Court going back to 1922 (The National Bank India v. The National Bank of Indore 24 B. L. R. page 1181). A brief tour of the decisions on this subject may fruitfully be made.

(7) As early as in 1898 a question of similar nature cropped up on a dispute between The Dunlop Pneumatic Tyre Co. Ltd. v. The Dunlop Lubricant Co. 16 R.P.C. 12 decided by the High Court of Justice Chancery Division on November 17 1898 The Court came to the conclusion that the defendant was using the word Dunlop in its name with a view to inducing customers to believe that the goods marketed by it were in some way connected with the plaintiff Company if not the goods manufactured by the plaintiff Company itself or manufactured with its sanction. The plaintiff succeeded in obtaining an injunction restraining the defendant from carrying on a business using the name Dunlop in that case.

(8) In Ouvah Ceylon Estates Ld. v. Uva Rubber Estates Ld. 27 R. P. C. 645 Mr. Justice Joyce affirmed this proposition in his judgment dated June 17 1910 In that case a geographical name was used in the names of two Companies locked in the debate. The name in question was the name of a province in Ceylon known as Ouvah. The plaintiff Company was doing its business in the name of Ouvah Ceylon Estates Ld. The defen- dant Company started its business using the name of the said province but spelt it as Uva. Having reached the conclusion that the names were similar the Court came to the conclusion that it would inevitably lead to confusion that it would interfere with the plaintiffs business and that the plaintiffs were entitled to a perpetual injuction. This case was affirmed by the Court of Appeal by its judgment dated October 21 1910 reported in 27 R. P. C. 753. A similar question arose in the High Court of Justice Chancery Division in the matter of Harolds Limited v. R. Harold Limited 41 R.P.C. 784. In that case the plaintiffs were doing business in the name of Harolds Limited and had acquired considerable reputation and goodwill. The defendant Company also entered upon business in the same line viz. money lending under the name of R. Harold Limited. The defendant Company utilized the name 6Harold which occurred in the name of the plaintiff company The Court came to the conclusion that the name Harold had been utilized with a fraudulent intention in order to secure advantage of the goodwill earned by the plaintiff firm. The explanation offered by the dependent for selecting the name Harold was considered unsatisfactory and unconvincing as we have done in the present case and injunction was issued in favour of the plaintiff restraining the defendant from carrying on business in the said name.

(9) A similar question again arose in connection with the use of the name Charles of London a wellknown Hair dresser who was doing business in London under this trading name as the defendant commenced his business adopting the same name in a different part of the country. A finding was recorded to the effect that the defendant was not shown to have known that the plaintiff was doing the business in this very name when he commenced the business and there was no suggestion of a dishonest motive. There was no evidence even as regards loss of customers to the plaintiff though there was evidence to show that persons got confused and thought that the defendants business might be connected with the plaintiffs business in London. The Court upheld the contention of the plaintiff that the defendant was not entitled to carry on business in that name and issued an injunction as prayed for (see (1958) R.P.C. 161). It may be stated at this juncture that in the aforesaid case the grievance was with regard to the use of the identical name which is not the case so far as the present matter is concerned. However so far as the principle is concerned it makes no difference. No useful purpose will be served by multiplying the instances of cases decided by the English Courts where an injunction was issued in order to restrain the defendant from doing business by using a name deceptively similar so as to cause confusion. It is now zero hour to refer to the law laid down by the High Court of Bombay in The National Bank of India v. The National Bank of Indore 24 B.L.R. 1181. In that case the plaintiff Company was doing banking business in the name of The National Bank of India. The defendant Company engaged itself in the same business namely banking business under the name of The National Bank of Indore. Though there was a glaring point of difference in the sense that while the plaintiff Company was using the geographical name of the whole country namely India the defendant Company was only using the name of one of the States namely Indore the Court came to the conclusion that there was a likeli hood of confusion being caused and that the defendant. Company was not entitled to carry on business in the said name. The Court has observed therein as under in this connection :

The principles by which this case must be decided are well established. The fundamental principle is that a person shall not trade under a name so closely resembling that of the plaintiff as to be mistaken for it by the public: Hendriks v. Montagu ((1881) Ch. D. 638); in other words that a person shall not carry on his business in such a way as to represent that his business was the business of another person: Merchant Banking Company of London v. Merchants Joint Stock Bank (1878) 9 Ch.D. 560 563 The question to be determined in cases of this descrip tion is whether there is such a similarity between the two names as that the one is in the ordinary course of human affairs likely to be confounded with the other: Hendriks v. Montagu ((1881) 17 Ch. D. 638 645 It is not necessary to prove that the defendants in taking the name complained of by the plaintiffs had any fraudulent intent. It is enough if the plaintiffs prove that the act of the defendants in assuming the name complained of is an injury to the plaintiffs rights: North Cheshire and Manchester Brewery Company v. Manchester Brewery Company ((1891 A. C. 83 87 There is no question in such cases of property monopoly in the name. The principle upon which the cases on this subject proceed is not that there is property in the word but that it is a fraud on a person who has established a trade and carries it on under a given name with some other person who assumes the same name or the same name with a slight alteration in such a way as to induce persons to deal with him in the belief that they are dealing with the person who has given a reputation to the name: Lee v. Haley ((1869) L.R. 5 Ch. App. 155 161 Hendriks v. Montagu ((1881) 17 Ch. V 633 649 The principles enunciated by the Earl of Halsbury L. C. in the North Cheshire Brewerys case referred to above have a material bearing on the present case In that case the Manchester Brewery Company was the plaintiff. The plaintiff company had carried on business under that name for years. The defendant company bought an old business called. The North Cheshire Brewery Ltd and then got themselves incorporated and registered under the name of The North Cheshire and Manchester brewery Co. Limited. The plaintiff company complained that the name of the defendant company was calculated to induce the belief that the plaintiff company had ceased to carry on business as a separate company and that the defendant company was an amalgamation of the plaintiff company and the North Cheshire Brewery Limited and it sued the defen dant company for an injunction. Byrne J. refused the injunction but the Court of Appeal reversed the judgment and granted the injunction The judgment of the Court of Appeal was upheld by the House of Lords. In the course of his speech the Lord Chancellor said: ((1899) A. C. 83 84 I have no complaint to make of their (counsel) being too long or too elabo rate; but the truth is that when one comes to see what the real question is it is in a single sentence. Is this name so nearly resembling the name of another firm as to be likely to deceive That is a question upon which evidence of course might be given as to whether or not there was another brewery either in the one place or in the other or whether there were several breweries nearly resembling it in name; what the state of the trade was and whether there was any trade name all those are matters which are proper to be dealt with upon evidence; but upon the one question which your Lordships have to decide whether the one name is so nearly resembling another as to be calculated to deceive I am of opinion that no witness would be entitled to say that and for this reason; that that is the very question which your Lordships have to decide. Much to the same affect are the observations of Lord Cozens Hardy M. R. in Ewing v. Buttercup Margarine Company Limited ((1917) 2 Ch. 1 10-11) In that case the plaintiff carried on business under the name of The Buttercup Dairy Company. The plaintiffs business consisted in selling butter margarine cream condensed milk etc. After some years the defendant company the Buttercup Margarine Company Limited was incorporated as a private company The memorandum of association of the defendant company authorized trade in milk cream butter margarines etc. In confirming the injunction granted by Astbury J. the Master of the Rolls said (p. 10) In a case like that where the plaintiff is the owner of a business which has been established since 1904 and has a turnover of half a million a year and must be regarded as old established business none the less because its actual sphere of operations is mainly in Scotland and the North of England what should I expect the defendants as honest men or honest representatives of a newly formed company to do I should expect them to say: We are very sorry; we were not aware of your existence in Scotland but as your object to our name we will change it so as not in any way to interfere with you Instead of doing that they assert their right to use the name and file a mass of affidavits in support of their claim to do what they have threatened and continued to do; and they seek to justify their name on the ground that the arm of the Court is not long enough to reach a defendant who takes a name similar to that of the plaintiff unless it can be shown that such name is calculated to deceive in the sense that a person desiring to be a customer of the plaintiff is induced thereby to become a customer of the defendant And they say that there can be no deception here because they are wholesale people while the plaintiff is a retailer that it is true that they have the fullest possible power under the memorandum and articles of association to carry on a retail business but that at the present moment they have no such intention. I should be very sorry indeed if the jurisdiction of the Court should be regarded as so limited I know of no authority. and I can see no principle which withholds us from preven ting injury to the plaintiff in his business as a trader by a confusion which will lead people to conclude that the defendants are really connected in some way with the plaintiff or are carrying on a branch of the plaintiffs business.

In our opinion in view of the law on the subJect which appears to be firmly settled it is futile to contend that the plaintiff Company cannot claim an injunction restraining the defendant Company from carrying on it business in a name so deceptively similar as to cause confusion amongst those who may be concerned in dealings with it. Just as a citizen is entitled to protection in respect of his movable and immovable properties he is also entitled to seek protection in respect of his proprietary rights in goodwill. As the Court will not permit theft of the property of a citizen it will not permit the theft of the goodwill earned by a citizen. There is also another dimension of the matter. The consumers require to be protected if there is any danger of confusion being caused in their mind and there is a likelihood of their being led into believing that the product in reality manufactured by X is manufactured by Y or by someone connected with Y. When a consumer or customer effects a purchase he is entitled to be assured of the fact that he is purchasing the very goods that he wants and the goods manufactured by a concern in which he has confidence and not goods manufactured by another concern whom the consumer or the customer does not know and that too by reason of the fact that he is deceived into believing that the product is manufactured by the former though it is in fact manufactured by the latter. Even if therefore the defendant Company had innocently selected a fancy name which is deceptively similar to the name of the plaintiff Company the Court would issue an injunction restraining the defendant Company from carrying on its business in the said name. In the present case as observed earlier we are of the opinion that the defendant Company has not done it innocently and that it has done it with an ulterior motive in order to gain undue and unjust advan tage of the plaintiff-Companys goodwill. We therefore see no reason to differ from the view taken by the trial Court. We may mention that the trial Court has not clarified that the injunction will be restricted to the manufacture of dyes and chemicals. And as the plaintiff Company has acquired a reputation in the manufacture of dyes and chemicals etc. and has only complained of an inv asion in the context of the business carried on by it in this line the injunction must be restricted to manu facture in this line. We accordingly modify the injunction to that extent and direct that the defendant and its servants and agents are hereby re strained by perpetual injunction from carrying on business in the manufa cture or sale of chemicals and dyes under any name and style comprising the words Simatul or any other word resembling the word Cibatul compromised in the plaintiffs name and style so as to represent or induct the belief that the defendant Company is the same as the plaintiff-Company or that the goods manufactured or sold by the defendant Company are the goods of the plaintiff Company. However in order to enable the defendant Company to change its name sufficient time must be granted to the defendant Company. We do not want to oblige the defendant Company to shut down its business during the pendency of the proceeding initiated to alter its name which by its very nature is likely to take some time. We do not want the defendant company to go out of business meanwhile or its business to suffer. So also we do not want the employees of the defendant Company to be laid off. We therefore grant six months time commencing from today to the defendant Company to alter its name so that it does not offend or violate the injunction being issued by this Court.

(10) Subject to the aforesaid modification the appeal fails and is dismissed with costs.

(11) Learned counsel for the appellant prays for grant of a certificate of fitness for appeal to the Supreme Court under Article 133 of the Constitution of India. The matter does not involve any substantial question of law of general importance which in our opinion requires to be decided by the Supreme Court We accordingly refuse the request.