P.K. Balasubramanyan, J.
1. The defendant Company challenges a decree for prohibitory injunction restraining it from using or continuing to the use the name 'Indian Coffee House' to its catering establishments. The suit was filed by the respondent Co-operative Society. According to the Co-operative Society the Society was formed of the erstwhile employees of the Indian Coffee Board and according to them with the help of the Coffee Board they formed themselves into a Cooperative Society and were running coffee houses which are in reality hotels naming the establishments 'Indian Coffee House' as distinct from the establishments which were being run by the coffee Board in the name of 'India Coffee House'. The Managing Director of the defendant Company was originally a member of the plaintiff Society and was also its Secretary for a number of years. The plaintiff Society was registered in its original name in the year 1958 and the Indian Coffee Houses were started. After the Managing Director of the defendant Company left the Society due to differences of opinion, he formed a Company, the Bharathiya Coffee Workers Catering (Private) Limited and established two establishments which the defendant Company named 'Indian Coffee House' and started doing the identical business of supplying food articles and coffee and other beverages. According to the plaintiff Society it was running nine establishments in Cannanore District and the rival establishments set up by the defendant Company were deliberately named 'Indian Coffee House' with a view to mislead the public and to attract customers who would have otherwise patronised the establishments run by the plaintiff Society. By so doing, the defendant was passing-off his establishments as that run by the plaintiff and the defendant Company was liable to be restrained from using the name 'Indian Coffee House' for its establishment. The defendant questioned the maintainability of the suit in the Munsiffs Court since the plaintiff had proceeded as if it was a passing-off action. The plaintiff had no right to prevent the using of the name Indian Coffee House by the defendant Company and the plaintiff Society had no right to use exclusively the name 'Indian Coffee House'. There was no intention to mislead the public. The defendant was also a retired or retrenced employee of the Coffee Board and hence he was also entitled to run a Coffee House with the help of the Coffee Board. The plaintiff was not entitled to any injunction as sought for.
2. In the trial Court on behalf of the plaintiff Exts. A1 and A2 were marked and the Secretary of the plaintiff Society was examined as P.W. 1. On behalf of the defendant the Managing Director of the Company was examined as D. W. 1. Ext. A1 was only a letter sent by the Deputy Chief Coffee Marketing Officer of the Coffee Board informing it that a recognition granted to the plaintiff as an approved Coffee House was being renewed for a further period and a fixed quantity of blended coffee powder was being allotted to the plaintiff for brewing purposes only and that the said quantity could be drawn from India Coffee Depot, Calicut. Ext. A2 was the bit notice published by the defendant Company inviting people for the inauguration of its Indian Coffee House. The trial Court held that it had jurisdiction to try the suit, and that on the evidence of P.W. 1 and D. W. 1, a decree could be granted to the plaintiff since the names used by the plaintiff and the defendant were identical even though it was a fact that there was no evidence to show that both the names were written in the very same fashion and style. The lower appellate Court held that the suit was maintainable relying on the decision of this Curt in Pavunni v. Mathew, ILR (1982) 2 Ker 250 : (AIR 1982 Kerala 309). On the question whether a case for an injunction was made out in the case on hand, the lower appellate Court even without discussing the evidence on record proceeded to confirm the decree for injunction essentially on the ground that the user of the name Indian Coffee House by the defendant Company would tend to mislead the public into thinking that it was a coffee house run by the plaintiff Society and the Indian Coffee Houses run by the plaintiff Society had a name and fame of its own. I am afraid that the finding that the Indian Coffee House run by the plaintiff had a name and fame of its own is not something that can be said to be established on the evidence in the case. Whatever it be, the appellate Court held that the Indian Coffee House run by the plaintiff Society had established a goodwill and reputation and there was sufficient material on record to show that the customers are likely to be deceived by the name Indian Coffee Hose written on the board exhibited by the defendant for its catering establishment. In that view, the appellate Court confirmed the decree. But, as I noticed, the appellate Court did not even discuss the evidence on record in support of its conclusion. As the final Court of fact, obviously the first appellate Court had the duty to discuss the evidence in the case in the light of the relevant principles of law and to record clear findings on the evidence available in support of its finding. I must observe that there is a failure on the part of the appellate Court to discuss the evidence on record and enter findings based on the evidence in support of its conclusion.
3. In the light of the decision of Mr. Justice V. Khalid (as he then was) in Ravunni v. Mathew, ILR (1982) 2 Ker 250 : (AIR 1982 Kerala 309). 1 see no merit in the contention raised on behalf of the defendant-appellant that the Munsiff's Court had no jurisdiction to entertain the suit. As distinct from the action based on the infringement of a trade mark, a passing-off action is essentially based on tort and could be fought in the ordinary Court where a suit on tort would normally lie. A Division Bench of this Court in A. C. Krishnan v. Nambisan's Dairy Pvt. Ltd., (1997) 1 Ker LT 163 has considered the nature of a passing off action and in the light of the ratio of that decision, it is clear that the suit before the Munsiff's Court was maintainable. I therefore find no substance in the argument raised on behalf of the defendant that the suit was not maintainable in the Munsiff's Court. I agree with the Courts below in their conclusion that the suit was maintainable in the Munsiff's Court.
4. The other question that was raised was whether on the evidence in the case, the plaintiff has established a right to have the decree for injunction as sought for by it. According to learned Counsel for the defendant there was no evidence on the side of the plaintiff which would justify the grant of a decree for injunction as sought for by the plaintiff. According to learned Counsel for the plaintiff, the evidence was adequate to support the decree for injunction now granted in favour of the plaintiff. As I have already observed, unfortunately in this case, the lower appellate Court had not chosen to discuss the evidence on record to find out whether the plaintiff had made out a case for an injunction. Unlike the case of an infringement of a trade mark wherein the Court is called upon to compare the products and the manner in which they are presented to see whether there is an infringement, in a passing-off action it is for the plaintiff to establish the elements that are needed for securing a decree for injunction as sought for.
5. Weingarten Brothers v. Bayer and Co. (1904-7) All ER Rep 877 (HL) stated the law thus :
'Probably few laymen would understand by the light of nature that it was permissible to take a name and wrong to take the garb in which it was presented to the public. But when the cause of action was formulated there was, I think no claim to any exclusive right in the name except in connection with the scroll. The action was an ordinary action to prevent Mr. Charles Bayer selling his goods as and for the goods of the appellants. It was necessary to bring out all the circumstances of the case, but the scroll was the one thing on which the action was based. Certainly no claim was made at the Bar on the part of the appellants to exclusive property in common English words, which in so short a space of time, could not possibly have acquired a secondary meaning.'
The above view, with respect, would suggest that the right to relief in a passing-off action must be related to the passing-off of certain goods under a particular name manufactured by another and the mere use of the name itself could not enable a plaintiff to obtain a relief of injunction restraining the use of that name. That name must be related to a product. In the case on hand both the plaintiff and the defendant are running catering establishments. The consumables served in the catering establishments of the plaintiff are the same as the consumables served in any other restaurant in the State run by any hotelier. Therefore it cannot be said that the name Indian Coffee House is a garb for the supply of any particular article manufactured by it. It is therefore possible to say that the plaintiff cannot get an injunction restraining the defendant from using the name Indian Coffee House for its catering establishment.
6. In Reckitt and Colman Products Ltd. v. Borden Inc (1990) I All ER 873 Lord Oliver of Aylmerton speaking for the House of Lords stated:
'The essence of the action for passing off is a deceit practised on the public and it can be no answer, in a case where it is demonstrable that the public has been or will be deceived, that they would not have been if they had been more careful, more literate or more perspicacious. Customers have to be taken as they are found. As Lord Blackburn observed in R Johnson and Co. v. Archibald Orr Ewing and Co. (1882) 7 App Cas 219 at 229 : 'If the plaintiffs had proved that purchasers had actually been deceived by the use of the mark B and that the defendants after being told of this had persisted in using this mark B, the plaintiffs would surely have been entitled to an injunction to prevent the continued use of B; and it could be no answer that the purchasers, so deceived, were incautious; the loss to the plaintiffs of the customs of an incautious purchaser is as great a damage as the loss of that of a cautious one.'
In Cellular Clothing Co. Ltd. v. Maxton and Murray (1899) AC 326 Lord Shand observed
'But I confess I have always thought, and I still think that it should be made almost impossible for any one to obtain the exclusive right to the use of a word or term which is in ordinary use in our language and which is descriptive only and, indeed, were it not for the decision in Reddaway's case (1896 AC 199) I should say this should be made altogether impossible. But where the plaintiffs' proof shows that the only representation by the defendants consists in the use of a term or terms which aptly and correctly describe the goods offered for sale, as in the present case, it must be a condition of the plaintiffs' success that they shall prove that these terms no longer mean what they say -- or no longer mean only what they say -- but have acquired the secondary and further meaning that the particular goods are goods made by the plaintiffs, and, as I have already indicated, it is in my view difficult to conceive cases in which the facts will come up to this.'
One thing is therefore clear that it is necessary for the plaintiff to establish that something which is manufactured by it is being passed off to the unsuspecting public as the product of the plaintiff. In A. C. Krishnan v. Nambisan's Dairy Pvt. Ltd. (1997 (I) KLT 163), the Division Bench quoted the summarisation of the nature of passing off action by the House of Lords in Reckitt and Colman Products Ltd. referred to earlier. The Division Bench quoted the following passage which I think beneficial to be extracted.
'The law of passing off can be summarised in one short general proposition no man may pass off his goods as those of another. More specifically, it may be expressed in terms of elements which the plaintiff in such an action has to prove in order to succeed. These are three in number. First, he must establish a good will or reputation attached to the goods or services which he supplies in the mind of the purchasing public by association with the identifying get up (whether it consists simply of a brand name or a trade description, or the individual features of labelling or packaging) under which his particular goods or services are offered to the public, such that the get-up is recognised by the public as distinctive specifically of the plaintiff's goods or services. Secondly, he must demonstrate a misrepresentation by the defendant to the public (whether or not intentional) leading or likely to lead the public to believe that goods or services offered by him are the goods or services of the plaintiff. Whether the public is aware of the plaintiff's identity as the manufacturer or supplier of the goods or services is immaterial, as long as they are identified with a particular source which is in fact the plaintiff. For example, if the public is accustomed to rely upon a particular brand name in purchasing goods of a particular description, it matters not at all that there is little or no public awareness of the identity of the proprietor of the brand name. Thirdly, he must demonstrate that he suffers or, in a quit time 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.'
It is therefore necessary in this case to consider whether the elements required to be proved by the plaintiff to entitle it to a decree for injunction have been proved.
7. The only evidence on the side of the plaintiff is that of P.W. 1. Exts. A1 and A2 marked in the case have no relevance to the issue except to the extent Ext. Al indicates that the Coffee Board had recognised the catering establishments run by the plaintiff as approved coffee house. But it is clear from the evidence of P.W. 1 and D.W. 1 that the status of an approved coffee house is conferred by the Coffee Board to any catering establishment that needs the standard set by the Coffee Board. Nothing much therefore turns on the approval indicated by Ext.A 1.
8. Coming to the oral evidence, as I have already noticed the lower appellate Court has failed to discuss the evidence in the case a final court of facts was bound to do. That Court proceeded on certain assumptions which might or might not be true. Certainly the assumptions made by the lower appellate Court are of facts which are capable of being established clearly by a plaintiff seeking the relief of injunction in an action based on deceit. The plaintiff did not establish with reference to its accounts that any loss has been caused or there has been any detriment to its reputation by evidence. The accounts of the plaintiff were not produced relating to the period prior to the opening of the establishment by the defendant and subsequent to the opening of the establishment by the defendant to demonstrate the loss of business. Nor was any witness examined to speak to the fact that he was mislead into patronising the establishment of the defendant because of the name displayed in that establishment. It is true that whether there has been an user of a symbol or a name by the rival trader which is deceptively similar to the one used by the plaintiff is a matter for decision by the Court and not one to be decided on the evidence of the witnesses. It is clear that the plaintiff had an obligation to let in sufficient evidence to enable the Court to find that the plaintiff has been affected in any manner so as to entitle him to a decree for injunction. As noticed here, the only infringement set up by the plaintiff is that the defendant has also used the name Indian Coffee House for its catering establishments. The plaintiff cannot have a right to the set of words as such. There is no case that the set of words has come to be associated with any particular product manufactured or marketed by the plaintiff. This was therefore a case where the plaintiff wanted the defendant not to use the name which the plaintiff had chosen for its catering establishments. Unless the plaintiff is able to establish all the elements as referred to in the decisions adverted to earlier, the plaintiff would not be entitled to a decree for injunction. By not approaching the case in this perspective and in not examining the evidence in the case from that perspective, the lower appellate Court has committed a substantial error of law justifying interference by this Court in Second Appeal.
9. P.W. 1 in his evidence stated that the Coffee House run by the plaintiff was popular among the people and was patronised by the people. The defendant had started similar catering establishments and had named their establishments also as Indian Coffee House. The establishment started by the defendant in the same town was about 3/4 Kms. away from the establishment of the plaintiff. For about 26 years the Indian Coffee Houses were being run by the Co-operative Society and when they hear the name Indian Coffee House, the people understand that it is a catering establishment run by the Workers' Co-operative Society. If the defendant were to run their catering establishments with the same name, loss will be caused to the plaintiff. The running of the establishments by the defendant has caused loss to the plaintiff and had affected the business of the plaintiff. The coffee powder and seeds for the catering establishment run by the plaintiff society were being supplied by the Coffee Board. In cross-examination P.W. 1 stated that the plaintiff society was formed for the welfare of those employees of the Coffee Board who had been retrenched or who had been retired. He pretended ignorance when it was suggested to him that the Coffee Board itself was running establishments called 'India Coffee House'. There was nothing to show that the Coffee Board was giving particular help to the Indian Coffee House run by the Society. The Indian Coffee House run by the plaintiff society was an approved Coffee House. Ext. A1 was a communication which would establish that fact. He did not know whether the establishments run by the defendant were also receiving coffee powder from the Coffee Board on the same basis as the Society. Nowhere it was stated that any one else was running a catering establishment with the same name. The goodwill of the establishment run by the plaintiff was because of the quality of the consumables supplied by them and the services in the establishments. If an establishment supplying similar goods and rendering equally efficient service was to be run by the defendant the customers will go there. The Managing Director of the defendant was also a retrenched employee of the Coffee Board. He was the Secretary of the plaintiff Society for a long time. Subsequently due to misunderstanding he left the plaintiff Society and formed the Company. People have told him that they were misled by the name used by the defendant Company. He asserted that the name board used by the defendant in its establishment was similar to the name board that was being used by the plaintiff. But there was nothing to show the same I may notice at this stage itself that the trial Court held that this aspect had not been established by the plaintiff. There was a catering establishment run at Neeleshwar by the defendant in the same name. No steps have been taken to restrain the functioning of that establishment. There was loss of business consequent on the defendant starting the establishment and that would be seen from the accounts of the plaintiff. That fact had not been pleaded by the plaintiff. The accounts had not been produced. But it was not correct to say that no loss has been caused to the plaintiff. D.W. 1 the Managing Director of the defendant Company stated that he had started the Company, that the plaintiff had no special right to run establishments by the name Indian Coffee House, that a number of people were running catering establishments with the name Indian Coffee House, that he had not started is company in view of his enmity towards the plaintiff Society, that all catering units which met the requirements are supplied coffee powder and seeds by the Coffee Board, that the uniform used by the servers in the defendant's establishments were different from the uniforms of the servers in the plaintiff's establishments, that the name of the plaintiff was misused was not correct, the claim that the plaintiff had incurred loss was also not correct, and that the board used by the defendant was not similar to the Board used by the plaintiff. In cross-examination he admitted that the plaintiff society was started in the year 1958 and for 12 years he was the employee of that Society. Right from the inception the society was running Indian Coffee Houses. The establishments run by the plaintiff Society prospered gradually. The name board had no significance except that it was a trade name. There may be importance in a trade name. He had started the catering establishments in the name of Indian Coffee House in the year 1984. That he had resigned from the plaintiff society, and that he had also been charge-sheeted by that society for impropriety. He had not named his establishments 'Indian Coffee House' to exploit the goodwill created by the Coffee Houses run by the plaintiff. This is the only evidence in support of the claim of the plaintiff for an injunction. It may be noted that all the Indian Coffee Houses run by the Employees' Co-operative Societies are not establishments run by the plaintiff Society. There are also other societies formed by retrenched or retired employees from the Coffee Board who independently run Indian Coffee Houses. During arguments it was submitted that the Indian Coffee Houses run in Trichur and even in the premises of the High Court are run by another Society and not by the plaintiff Society. In fact the evidence of D.W. 1 is to the effect that any retrenched or retired worker of the Coffee Board can start a Co-operative Society and run an establishment named Indian Coffee House. Thus this is not acase where the plaintiff Society, namely, the Indian Coffee Workers' Co-operative Society Ltd. No. 4317, Cannanore has got any exclusive right to run Coffee Houses named Indian Coffee House. It is a generic name which is being used by all Cooperative Societies of the ex-employees of the Coffee Board who function independent of each other. It might be true that the Indian Coffee House run by the ex-employees of the Coffee Board might have earned a name and good will due to the services rendered by them in their catering establishments. But that by itself would not enable the plaintiff to prevent other ex-employees of the Coffee Board or any other owner of a catering establishment from running a catering establishment under the name Indian Coffee House. Indian Coffee House is not a registered trade mark. It is only a set of words which can be understood only as generally descriptive. In such a situation, I am of the view that the plaintiff has failed to prove that he is entitled to a decree for injunction restraining the defendant from running his establishments by the name 'Indian Coffee House' on the basis of a passing-off action. I hold that the plaintiff has failed to prove the facts and the elements which would enable it to get a decree as sought for in the plaint. The decrees granted by the Courts below are not based on clear evidence in support of the claim. The evidence is general in nature and on the principles noticed earlier, it has to be held that a case has not been made out for relief in a passing-off action. I am hence satisfied that I would be justified in interfering with the decrees now passed.
In the result', I allow this Second Appeal and reversing the judgments and decrees of the Courts below dismiss the suit filed by the plaintiff. Considering the circumstances of the case and the nature of the controversy between the parties, I direct them to bear their respective costs in all the Courts.