Madhubhan Holiday Inn Vs. Holiday Inn Inc. - Court Judgment

Excerpt:
a) the case dealt with the suit filed for infringement of trade mark and passing off under sections 106, 27(2) and 29 of the trade and merchandise act,1958, wherein there was sufficient explanationn for the delay in filing the same - the respondent learned in the month of august 1982, about the misuse of the name holiday inn by the appellants and thereafter notice was issued to the respondents in that regard - thereafter, law suit was filed in 1983 - it was held that, explanationn furnished by the respondent was convincing and the delay was explained properlyb) the case discussed the defense raised by the defendants in the suit filed for infringement of trade mark and passing off - action was initiated against the appellant for adopting word 'holiday in', which was respondents trade mark.....dalveer bhandari, j. 1. these appeals are directed against the judgment and decree passed by the learned single judge in suit nos. 1626 of 1983 and 1627 of 1983. both the suits were clubbed and evidence was recorded only in suit no. 1626 of 1983 titled holiday inns inc. v. kapoor holiday inn and on the strength of the evidence in the said case both the suits were disposed of by a common judgment and decree dated 21.5.1986. the appellants herein are defendants in suits and the respondent herein is the plaintiff.2. the respondent company. holiday inn inc is a registered company of the united states of america and has acquired global reputation. the respondent learnt that the appellants were using the words 'holiday inn' on its visiting cards, menu cards, tariff cards, stationery and other.....

Judgment:

Dalveer Bhandari, J.

1. These appeals are directed against the judgment and decree passed by the learned Single Judge in Suit Nos. 1626 of 1983 and 1627 of 1983. Both the suits were clubbed and evidence was recorded only in Suit No. 1626 of 1983 titled Holiday Inns Inc. v. Kapoor Holiday Inn and on the strength of the evidence in the said case both the suits were disposed of by a common judgment and decree dated 21.5.1986. The appellants herein are defendants in suits and the respondent herein is the plaintiff.

2. The respondent company. Holiday Inn Inc is a registered company of the United States of America and has acquired global reputation. The respondent learnt that the appellants were using the words 'Holiday Inn' on its visiting cards, menu cards, tariff cards, stationery and other printed materials relating to its lodgings and restaurant, towels, crockery, cutlery, key, chains/rings and diverse goods relating to its lodgings and restaurant. The said use was in flagrant violation of the respondent's trade mark 'Holiday Inn'. The respondent gave a 'cease and desist notice' to the appellants, but despite the service of notice the appellants neither replied to the said notice nor complied with its requirements. By the use of the words 'Holiday Inn' as a part of its trading style, the appellants seek to represent to the public some connection with the respondent. According to the respondent the appellants are also passing off their business as that of the respondent or as one associated with it. In this way, the appellants are trading upon the good will and reputation enjoyed by the respondent throughout the world including India.

3. Learned Single Judge after carefully weighing the entire evidence and documents on record came to the conclusion that the use of the words 'Holiday Inn' by the appellants, particularly, in relation to the same business causes deception and confusion in the trade and is an attempt by the appellants to induce the customers to believe that the business of the appellants is the business of the respondent or that it is associated with the respondent. The Court granted the respondent a decree of perpetual injunction with costs restraining the appellants its proprietors/partners, servants and agents from using the words 'Holiday Inn' or any other name or expression deceptively or otherwise similar thereto as its trading style or as a part thereof; the Court also passed a decree for permanent injunction restraining the appellants, its proprietors/partners, servants and agents from using the words 'Holiday Inn' or any other name or expression deceptively or otherwise similar thereto in relation to Its goods particularly on its visiting cards, menu cards, tariff cards, stationery and other printed materials relating to its lodgings and restaurants, towels, crockery, cutlery, key chains/rings and diverse goods relating to Its lodgings and restaurants. The appellants have also been directed to render accounts to the respondent of the profits earned by them while trading in the trading style which includes the words 'Holiday Inn'.

4. Against that judgments and decree the appellants have filed these appeals before this Court. A Division Bench of this Court admitted the appeals and stayed the execution of the decree. Arguments advanced on behalf of Madhuban Holiday Inn and Kapoor Holiday Inn are identical. thereforee, we also deem it appropriate to dispose of both these appeals by a common judgment.

5. Mr. J.S. Arora, learned counsel appearing for the appellants submitted that the words 'Holiday Inn' are descriptive of the business of a hotel and as per settled law nobody can legitimately monopolise such words for his business.

6. It is also submitted by Mr. Arora that in case of a trade name which consists of descriptive words even a small difference will be taken to be sufficient enough in between the trade names of the respondent and that of the appellants. If any person uses for the name of his business, words which are descriptive of such business and Initiates an action for passing off, he must show that such words have lost their original meaning and have acquired a secondary meaning denoting the business of the respondent only and in such action the respondent must further prove that some person had actually been deceived by the similarity in the names of the two businesses and mere likelihood of confusion would not be enough. To strengthen his submission the learned counsel for the appellants placed reliance on a decision of this Court in Lloyd Insulations (India) Ltd. v. Punj Lloyd Insulations Pvt. Ltd. 97 1997 DLT 617. The Court held in this case as under :

'(a) In case of a trade name which consists of descriptive words small difference will be taken to be sufficient enough in between the trade names of the plaintiff and that of the defendant, whereas in case of a trade mark a mere similarity in the trade mark is per se actionable.

(b) In an action for passing off a mere similarity in the two trade names is not sufficient to conclude that it will cause confusion and would mislead the customer to take the one for the other. It has further to be shown that similarity in their names has misled a customer to take one for the other.

(c) No body can claim property in a mere descriptive word used by him as his trade name unless and until it is shown that the said descriptive word has acquired a secondary meaning and has lost its primary character and is so much associated with the goods of the plaintiff that a mere mention of it brings before his eyes the picture of the goods of the plaintiff.

(d) In case a fancy word has been shown as part of a name, then the same is distinctive per se and if another trader takes that word as part of his trade name with only a slight variation, then he can be said to have created confusion.'

7. It is submitted on behalf of the appellants that they are only providing services and they are not trading in goods. Appellants further submitted that a trade mark can be with regard to the goods and not for the services.

8. The learned counsel appearing for the appellants has drawn our attention to Section 2(1)(g) of the Trade and Merchandise Marks Act, 1958 (for short 'the Act'). According to the said section 'goods' means anything which is the subject matter of trade or manufacture. The appellants have also drawn our attention to Section 8 of the Act which provides that 'A trade mark may be registered in respect of any or all of the goods comprised in a particular class of goods'.

9. Mr. Arora submitted that the appellants are not using the name 'Holiday Inn' simplicitor. They are using 'Madhuban Holiday Inn' and 'Kapoor Holiday Inn', thereforee, there is no question of infringement of the respondent's registered trade mark because before 'Holiday Inn' the prefix 'Madhuban' or 'Kapoor' has been mentioned. According to the appellants there cannot be any confusion and no action of passing off would be maintainable.

10. The appellants also contended that there were a number of lodging houses running in Delhi using the words 'Holiday Inn' like 'Kumar Holiday Inn' 'Anand Holiday Inn', 'Bawa Holiday Inn', 'Archana Holiday Inn', 'Siddharth Holiday Inn' etc. etc. The words 'Holiday Inn' meant a lodging house and indicate the nature of such business were descriptive in character and, thereforee, had not by user, become distinctive of the business of the respondent. In any event in India by use of these words a large number of concerned institutions have lost their distinctive character. The appellants submitted that the respondent did not file similar suits against other lodging houses.

11. Mr. Arora placed reliance on Office Cleaning Services Ltd. v. Westminster Offices Cleaning Association 1944 (2) All ER 617. In this case the plaintiffs, a limited company carried on the business of cleaning the interiors of offices and windows cleaning under the name of Office Cleaning Services Limited. The defendants were engaged since 1894 in a similar kind of business, trading since 1931 under the style 'Westminster Office Cleaning Association'. In 1942 the defendants omitted from their advertisements the word 'Westminster' and carried on the office cleaning work under the style of 'Office Cleaning Association'. The plaintiffs sued for an injunction restraining the defendants from using in connection with their business as contractors for the cleaning of offices the trading style 'Office Cleaning Association' or any other style so closely resembling the name of the plaintiffs as to be calculated to lead to the defendants' business being confused by members of the public with that of the plaintiffs. The defendants denied that the trading style complained of was capable of producing confusion, contending that the words 'Office Cleaning' were merely descriptive and, when read in conjunction with the word 'Association', were sufficient to distinguish their title from the plaintiffs' title 'Office Cleaning Services Ltd.'

12. The appellants also placed reliance on a judgment of this Court in Girnar Food & Beverages Pvt. Ltd. v. Godfrey Phillips India Ltd. : 90(2001)DLT839 . In this case the Court held that the trade mark 'Super Cup' was descriptive and laudatory of goods of the plaintiff and the plaintiff was not entitled to an injunction.

13. The appellants also placed reliance on the Judgment of the Supreme Court in J.R. Kapoor v. Micronix India 1994 (2) ALR 274. In this case it was held that if the goods are not similar and the trade marks, logo and colour scheme of cartons are not likely to cause confusion in the minds of customers, no injunction to restrain the use of the trade mark can be granted to any party.

14. Reliance has also been placed on a Division Bench judgment of the Andhra Pradesh High Court in Teju Singh v. Shanta Devi : AIR1974AP274 . It was held in this case that where a trader adopts a trading name including mere descriptive words of common use, the Court will not readily assume that the use of the said word or name by another is likely to cause confusion. In such a case the plaintiff has to further prove that the name has acquired a distinctive meaning in connection with the business so that the use of this name by another is likely to deceive the public.

15. The appellants also placed reliance on the judgment of the Supreme Court in Kaviraj Pandit Durga Dutt Sharma v. Navaratna Pharmaceutical Laboratories : [1965]1SCR737 . In this case the Court observed that in an action for infringement, the plaintiff must, no doubt, make out that the use of the defendant's mark is likely to deceive, but where the similarity between the plaintiff's and the defendant's mark is so close either visually, phonetically or otherwise and the Court reaches the conclusion that there is an imitation, no further evidence is required to establish that the plaintiff's rights are violated. Expressed in another way, If the essential features of the trade mark of the plaintiff have been adopted by the defendant, the fact that the get up, packing and other writing or marks on the goods or on the packets in which he offers his goods for sale show marked differences, or indicate clearly a trade origin different from that of the registered proprietor of the mark would be immaterial, whereas in the case of passing off, the defendant may escape liability if he can show that the added matter is sufficient to distinguish his goods from those of the plaintiff.' In this judgment their Lordships of the Supreme court held that for deceptive resemblance two factors are necessary - (1 ) Who were the persons to whom the resemblance must be likely to deceive or confuse and (2) What rules of comparison are to be adopted in Judging whether such resemblance exists

16. Reliance has been placed on Amritdhara pharmacy v. Satya Deo Gupta : [1963]2SCR484 . In this case the Court held that the Act does not lay down any criteria for determining what is likely to deceive or cause confusion within meaning of Section 8(1) and Section 10(1). thereforee, every case must depend on its own particular facts and the value of authorities lies not so much In the actual decision as in the tests applied for determining what is likely to deceive or cause confusion.

17. In Ellora Industries v. Banarsi Das Goela and Ors. 1979 (2) Del 481 this Court had occasion to examine the matter pertaining to passing off. The Court observed that the purpose of passing off is to protect commercial goodwill; to ensure that people's business reputations are not exploited. This is based on economic policy, the need to encourage enterprise and to ensure commercial stability. The Court observed that in an action of passing, off the plaintiff has to establish the existence of business reputation which he seeks to protect. The asset that is protected, is the reputation the plaintiff's business has In the relevant market. The Court further observed that in passing off actions all that needs to be proved is that the defendant's goods are so marked, made up or described by them as to be calculated to mislead the ordinary purchaser and to lead them to mistake the defendant's goods for those of the plaintiff's. It is the tendency to mislead or confuse that thus forms the gist of action. The plaintiff need not establish fraud, nor that any one was actually deceived, or that he actually suffered damages. The Court in short described that passing off is an action against an imitator who is reaping without sowing. The Court also observed that the real test is the likely effect on those members of the public who ultimately become the purchasers.

18. Reliance has been placed on Aerators Limited v. Tallitt 1902 (2) CD 319. In this case the Court held that the plaintiff company had no monopoly of the word 'Aerator' which was a word in common use in the English language and on this ground Injunction was refused.

19. Reliance has also been placed on British Vacuum Cleaner Company Limited v. New Vacuum Company Limited 1907 (2) CD 312 wherein the Court held that the plaintiff company by allowing subsidiary companies to be formed under names containing the words 'vacuum cleaner' in conjunction, had admitted that another company with a name so containing those words would not necessarily be confused with the plaintiff company.

20. In Park Court Hotel Limited v. Trans-World Hotels Limited (1972) RPC 27 the Court held that the word 'International' was descriptive of both the plaintiffs' and defendants' hotels. In such a case a heavy burden lay on a plaintiff to establish false representation; it was not enough to establish some risk of confusion and the Court would accept small differences as sufficient to avert confusion. In that case, the plaintiffs had not on the facts established a prima facie case for interlocutory relief, and in addition the balance of convenience was against granting such relief. Interim injunction was refused.

21. Similarly in McCain International Limited v. Country Fair Foods Limited and Anr. (1981) RPC 69 the Court held that in the beginning of 1979 the plaintiffs introduced onto the U.K. market a novel product - chips which could be cooked in the oven or baked under the grill - and sold the product under the name 'McCain Oven Chips'. In April 1980 the defendants sought to launch their version of the product under the names 'Country Fair Oven Chips' and 'Birds Eye Oven Chips'. The plaintiffs obtained an ex parte injunction in the Queen's Bench Division to restrain the defendants from marketing their product under the name 'oven chips' whether with or without their own brand names and after hearing the parties the injunction was continued until Judgment. The defendants appealed against the said Judgment/order. The defendants contended the name 'Oven Chips' was descriptive of the product, that it had not subsequently acquired distinctiveness and that where a descriptive name had been applied to a product by the sole supplier of that product that name could not easily acquire distinctiveness. The plaintiffs argued that 'oven chips' was not descriptive but was a fancy name being an ungrammatical combination of two words which had not previously been associated together and further that by virtue of the plaintiffs' extensive sales and advertising it had become distinctive of their product. The appeal in this case was allowed by the Court of Appeals .

22. The Bombay High Court in Carew Phipson Limited v. Deejay Distilleries Pvt. Limited : AIR1994Bom231 held that in the present case, the trade mark of the plaintiff was 'Blue Riband Duet Gin N Lime' and 'Blue Riband Tango N Orange'. The trade mark of the defendant was 'English Duet Gin N Lime' and 'Duet Gin N Orange'. The customers of both the plaintiffs and the defendants were normally educated and discerning type. There, was absence of evidence regarding actual deception or confusion in the minds of the customers. On comparison of the trade mark of the plaintiffs with the defendants' trade mark, it is difficult to hold that the two marks were deceptively similar and were likely to create any confusion in the minds of the customers.

23. Mr. Navin Chawla, learned counsel appearing for the respondent supported the judgment of the learned Single Judge and submitted that no interference is called for with the well reasoned judgment which is based on evidence and documents on record. Mr. Chawla submitted that Issue No. 1 related to whether the plaint is signed by an authorised person. The respondent (plaintiff in suit) produced P.Ws 1 & 2, who were not cross-examined by the appellants (defendants in suit) despite adequate opportunity granted to him. The appellants did not care to lead any evidence in rebuttal and this issue was rightly decided in favor of the plaintiff .

24. Mr. Chawla submitted that Issue Nos. 2 & 3 related to whether the respondent Holiday Inn is the registered proprietor of the trade mark 'Holiday Inn' and whether the appellants' use of the words 'Holiday Inn' is infringing the respondent's registered trade mark. The learned Single Judge has recorded that the counsel for the appellants have not challenged the Certificate of Registration, but submitted that the registration relates, to the specific goods and the hotel business run by the plaintiff cannot be protected under such registration. The learned Single Judge rightly considered the definition of goods as contained in Section 2(i)(g) of the Trade and Merchandise Marks Act ,1958 and on the basis of settled law that where the Impugned trade mark or trade name is identical with or deceptively similar to a registered trade mark, then a finding of Infringement must follow as the same is a statutory relief to which the proprietor is entitled by virtue of registration. Mr. Chawla submitted that no infirmity can be found in the impugned judgment and consequently no interference is called for.

25. Mr. Chawla submitted that Issues 4 and 5 pertained to passing off and whether word 'Kapoor' prefixed to 'Holiday Inn' would prevent confusion. He submitted that the learned Single Judge on the basis of the entire evidence on record came to specific finding that the appellants used the words 'Holiday Inn' prefixed as 'Kapoor Holiday Inn' and 'Madhuban Holiday Inn' with a view to pass off their business as that of the respondent's.

26. Mr. Chawla urged that the documents filed under Order 41 Rule 27 CPC being the computer print out of the appellant's and respondent's page from internet under the heading 'Holiday Inn Delhi'; 'Holiday Inn' and the respondents and appellant's website. He submitted that in the page entitled 'Holiday Inn Delhi' the first information appearing on the page is about 'Kapoor Holiday Inn Hotel' in Delhi and thereafter the information about respondent's 'Holiday Inn' hotel follows. He submitted, that this is likely to cause confusion and the customer is likely to believe that the 'Kapoor Holiday Inn' is in fact a hotel run by the respondent and accordingly do his bookings on the internet with the appellant. Under the heading 'Holiday Inn' on the internet information about the respondent's hotels world wide is given. Similarly the appellant also has a website on the internet under the heading 'Kapoor Holiday Inn' giving its tariff, location etc and advertising itself as the 'most distinguished address in New Delhi, Kapoor Holiday Inn Is located in the heart of South Delhi'. He submitted that the learned Single Judge has correctly decided Issue Nos. 4 & 5 in favor of the respondent and against the appellants.

27. Issue No. 6 relates to delay. The learned Single Judge has considered the evidence of PW 2 who stated that only in the month of August, 1982 the respondent learnt about the misuse of the name Holiday Inn by the appellants and thereafter he reported the matter to his head quarters and immediately thereafter cease and desist notice was issued to the appellants. Thereafter , the law suit was filed in Court. According to the learned Single Judge the Explanationn furnished by the respondent is convincing and the delay in filing the suit has been duly explained. It is submitted by the respondent that similar actions have been taken by the respondent against others who tried to ride on respondent's reputation.

28. Mr. Chawla learned counsel for the respondent in support of his submissions placed reliance on a number of decided cases. He first referred to a judgment delivered by one of us (Vikramajit Sen, J) reported as Rainforest Cafe Inc v. Rainforest Cafe & Ors : 91(2001)DLT508 . In this case the plaintiff Rainforest Cafe Inc has 37 restaurants world wide and is planning to open many more restaurants throughout the globe and particularly in India. The plaintiff has advertised in the leading and premier magazines and newspapers. It is mentioned in the plaint that the revenues/sales in 1997 and 1998 were to the tune of US $ 108 millions and US $ 213 millions, respectively. It is also incorporated in the plaint that because of its success, largely because due to its particular unusual and novel name, ambience and decor of its outlets, its shares are even quoted on the New York Stock Exchange. It has its own web-site. Consequent to its phenomenal progress, the plaintiff has been receiving trade inquiries from all corners of world. The defendant opened a restaurant with the name of 'Rainforest Cafe' masquerading as one of the outlets of the plaintiff. The defendant has copied the plaintiff's name, as also the tagline of 'A WILD PLACE TO EAT'. There is a certainty that because of the shoddy manner in which the restaurant is presently running, irreparable injury will be caused to the reputation and good will of the plaintiff world wide, and will also have adverse ramifications on the impending enquiries for its franchise in New Delhi as well as other parts of India. On consideration of the totality of the facts and circumstances, the Court found the balance of convenience in favor of the plaintiff and observed that the plaintiff is likely to suffer irreparable injury, if the defendant continues to run its restaurant in its present name and style which is a poor but blind copy of the plaintiff's cafes world wide. On consideration of the totality of the facts the Court granted injunction in favor of the plaintiff.

29. Mr. Chawla also placed reliance on Simatul Chemical Industries Pvt. Ltd. v. Cibatul Ltd. : AIR1978Guj216 . In this case the Court while upholding that the plaintiff should be protected, held that the test to be applied is the test of an average person with imperfect recollection. It would not be right to apply the test of a man of extraordinary 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 arid contemplates whether he is dealing with one company or the other .

30. Reliance has also been placed on Kaviraj Pandit v. Navratan Pharmaceuticals Laboratories : [1965]1SCR737 . The Court observed that where the similarity between the plaintiffs and defendant's marks is so close visually, phonetically or otherwise and the Court reaches at the conclusion that there is an imitation, no further evidence is required to establish that the plaintiff's rights are violated.

31. Mr. Chawla also relied on Polson Ltd. v. Polson Dairy Ltd. : 56(1994)DLT102 wherein this Court granted temporary injunction and observed that adoption of the word 'Polson' by the defendant company is malafide and defendant has not explained how it has come to adopt the said word, particularly when the said word is an invented word. The Court held that where a mark has been dishonestly usurped by a party, such a party cannot have any defense against the grant of temporary injunction restraining it from using said mark it would ultimately result in deceiving the public.

32. In Cadila Health Care Ltd v. Cadila Pharmaceuticals Ltd. : [2001]2SCR743 the Court observed that the passing off action depends upon the principle that nobody has a right to represent his goods as the goods of somebody else. In other words, a man is not to sell his goods or services under the pretence that they are those of another person.

33. In Caesar Park Hotels v. Westinn Hospitality Services Ltd. 1999 PTC 123 the Division Bench of Madras High Court while setting aside the judgment of the learned Single Judge applied the principle of transborder reputation and restrained the defendant from using the word 'West inn' for Its business.

34. In Poddar Tyres Ltd v. Bedrock Sales Corporation, Bedrock Ltd. (1993) 18 IPLR153 the Court held that the trading style and name of defendant No. 1 containing the word 'Bedrock' did amount to infringement and passing off since such adoption of the mark in the business name was neither honest nor bonafide so as to claim valid use under Section 34 of the Act.

35. In Sarabhai International Ltd. v. Sara Exports International this Court held that the use by the defendants of the word/mark 'Sara' in their trading style was an infringement of plaintiff's registered trade mark. Further, on account of deceptive trading style Sara Exports International which includes the main portion of registered trade mark of the plaintiff, the defendant was passing off, enabling others or causing and assisting others to pass off. Defendant was guilty of the tort of passing off.

36. This Court in Virendra Dresses v. Varindra Garments : AIR1982Delhi482 held that the trade names of plaintiffs and defendants are similar, sufficient to give rise to confusion. Similarity and confusion to be determined from the point of view of a common man. A man in the street will remember the name Varindra he may not be able to make a distinction between the 'Garments' and 'Dresses'. A customer intending to go to the business premises of the plaintiffs is likely to visit the business premises of the defendant when the two trading names are so similar.

37. In reply to the other submissions of the appellants that so many other people are using the trade name 'Holiday Inn', Mr. Chawla cited a Division Bench judgment of this Court in Jagan Nath Prem Nath v. Bhartiya Dhoop Karyalaya : AIR1975Delhi149 . In this case the Court held that the mere fact that the other manufacturers had the numerals in question in their trademarks does not furnish a sufficient ground to discharge the interim injunction because of Section 28(3). In law, even though the appellant might not be in a position to enforce any right against the other registered holders of the trademarks using the numerals of 555 yet against every third person (including the respondent) who was not a registered holder of the trademark he was entitled to enforce his rights as registered holder of the trademark.

38. In Tata Iron & Steel Co. Ltd. v. Mahavir Steel and Ors. I.A. Nos. 6215 and 8804 of 1990 dated February 25, 1992 this Court observed 'An imitation remains an imitation whether it is done by many. It acquires no legitimacy. A wrong is not righted by the following it musters . '

39. Mr. Chawla, learned counsel for the respondent cited a number of judgments to establish that in cases where the defendant could not offer any Explanationn for adoption of the name adverse inference should be drawn by the Court against the defendant. He placed reliance on Ciba Geigy Ltd. v. Crosslands Research Laboratories Ltd 1996 PTC (16) 1 in which the Court held that 'the uncandid statement made by the defendant about the selection of the word makes me wonder that the defendant has done it with deliberate intention of obtaining pecuniary advantage from the wide reputation of the plaintiffs business all over the world. Absence of categorical statement on the part of defendant to explain how he adopted a particular trademark then adverse inference under Section 114(g) of the Evidence Act, 1872 can be drawn'. In this case the Court also held that the proof of fraudulent intention is not a necessary element in a case of passing off.

40. Similarly in Ciba Geigy Ltd. v. Surinder Singh and Ors. : AIR1999Delhi49 this Court held that adoption of the said word by defendants by overlooking thousands of other words in English language shows that it wanted to derive benefit from plaintiffs goodwill. defense of acquiescence pleaded by the defendants not found tenable. In this case the Court also observed that the plaintiff is not required to establish fraudulent intention on the part of the defendant. Even causing of actual confusion amongst the customers is also not to be proved by the plaintiff, what it is required to establish is the likelihood of deception or confusion.

41. Mr. Chawla also submitted that it is not necessary for the plaintiff to prove fraud. It is enough for the plaintiff to prove that the offending trade mark is calculated or likely to invade the right of the plaintiff. The Court observed in Prina Chemical works v. Sukhdayal & Co (1974) 1 545 (DB) that it is now well settled that proof of fraud is unnecessary whether the relief asked for is for an injunction or damages. It is sufficient that the offending trademark is calculated or is likely to invade the proprietary right.

42. In Richardson Vicks Inc v. Vikas Pharmaceuticals : 40(1990)DLT194 this Court observed that in order a trade mark may be found deceptively similar to another, it is not necessary that it should be intended to deceive or intended to cause confusion. It is the probable effect on the ordinary kind of customer that has to be considered.

43. The question of delay has been examined by this court in the matter of Glaxo Operations UK Ltd. v. Samrat Pharmaceuticals : AIR1984Delhi265 where this court observed that the plaintiff learnt about the infringements in 1980, Some time was spent in giving notices to the defendants. The suit and application for interim injunction were filed in 1982, The Court held that there was no inordinate delay and the fact that the defendants built up their sales was immaterial while granting injunction as they were served with notice by the plaintiff.

44. In Rampal Singh v. Rias Ahmad Ansari & Anr. , their Lordships of the Supreme Court observed that If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial courts exercise of discretion.

45. Similar views are expressed in Cadila Pharmaceuticals v. torrent Pharmaceuticals Ltd. 1999 PTC 318 wherein the court held that the mere possibility of the Appellate Court coming to different conclusion will not justify interference.

46. We have carefully perused the pleadings of the parties and critically appreciated the submissions made at the bar. We have also carefully analysed various decided cases cited by the learned counsel to buttress their rival submissions.

47. The appellants main submission is that 'Holiday Inn' are descriptive words and they refer to hotel business and the appellants were fully justified in adopting these words. Apart from that before 'Holiday Inn' the appellants had used prefix 'Madhuban' and 'Kapoor'. thereforee, no one can legitimately be misled or deceived. 'Holiday Inn' are not dictionary words. The words 'Holiday Inn' had been coined by the respondent and are descriptive of the business of the respondent only. thereforee, we do not find any merit in this contention of the appellants.

48. The other submission of the appellants is that apart from the appellants others have also used the words 'Holiday Inn' for their hotels. In Tata Iran & Steal Co. (supra) it has been aptly observed by this Court that an imitation remains an imitation whether it is done by many. It acquires no legitimacy. Moreover, the respondent has taken actions against others also.

49. There is no substance in the submission of the appellants that there has been a delay in filing the suit. The learned Single Judge was justified in holding that there has been no delay in filing the suit in the instant case. The findings of the learned Single Judge are based on the settled legal position.

50. The respondent company Holiday Inn Inc is a registered company in the United States of America. The company has acquired immense global reputation. It has a large number of hotels in various parts of the world. The adoption of the words 'Holiday Inn' by the appellants from the very inception was based on the doctrine of bad faith. The appellants were fully aware of the considerable transborder reputation of the respondent and they wanted to derive pecuniary benefits from their reputation, the question that arises is that out of the millions of words of English language, why did the appellants adopt only the words 'Holiday Inn', The answer has to be that the appellants deliberately adopted these words to ride on the immense global reputation of the respondent. The intention of the appellants becomes absolutely clear after seeing the computer print out of the appellants and respondents pages taken from the internet under the heading 'Holiday Inn, Delhi'. These documents were placed before us by the respondent. Under the heading 'Holiday Inn' in the internet information about the respondent's hotel world wide is given. Similarly the appellants, Kapoor Holiday Inn, also has a web site in the Internet under the heading 'Kapoor Holiday Inn' giving its tariff, location etc and advertising itself as the 'most distinguished address in New Delhi'. By giving all this description the appellants in fact wanted to ride on the reputation of the respondent and derive pecuniary benefit from it. As observed in Simatul Chemicals Industries Pvt. Ltd. (supra) the test to be applied is the test of an average person with imperfect recollection. It would not be right to apply the test of a man of extraordinary 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. The average person is likely to be deceived by or confused with the use of the words 'Holiday Inn' by the appellants.

51. In our considered opinion, the adoption of the words 'Holiday Inn' by the appellants is ex facie fraudulent and mala fide from the very inception. The words 'Holiday Inn' have been adopted by the appellant to ride on the global reputation of the respondent. The appellant was actuated by bad faith and dishonest motive. In the facts and circumstances, the learned Single Judge was fully justified in granting the injunction and decreeing the suits in order to protect the commercial goodwill and to ensure that the global business reputation of the respondent is not exploited by the appellants In a clandestine manner.

52. Both the appeals are devoid of any merit and are accordingly dismissed with costs.