Judgment Padma Khastgir, J. 1. KWALITY Ice Creams Limited filed a suit against India's Hobby Centre Pvt. Ltd. for a permanent injunction restraining the defendant from infringing in any way the petitioner's copyright No. A-30184/80 by the use of the expression on the device "Sub Zero" or any near resemblance thereof and also for an order of injunction restraining the defendants from passing on or selling or advertising or trading any Ice-cream and/or similar products under the name, label, device of 'Sub-Zero' or any near resemblance and for other consequential reliefs. 2. ACCORDING to the petitioner it is a well known manufacturer and marketer through itself of Ice-creams of superior quality in various places in India. The defendant until October 31st, 1982 was an agent of the petitioner for sale of petitioner's ice-cream products under the name 'Sub-Zero' at its business premises at No. 1A, Russel Street, Calcutta. By an agreement dated June 27, 1979, the petitioner appointed the defendant its agent to stock, display and sale its Ice-creams under the name Sub Zero at a parlour of the said name within the said business premises of the defendant at 1A Russel Street, Calcutta which agreement provided that Kwality Ice-cream, the petitioner would be the Principal and the India's Hobby Centre, the agents. Under the said agreement the Principal would supply the Ice-creams besides necessary equipments including display cabinet which would remain the property of the Principal to be sold from the said showroom of the agent at No. 1A, Russel Street, Calcutta and the Principal will replenish the stock as and when necessary. The agent was entitled to a commission of 10% or Rs. 4,200/- per month whichever is higher for conducting such sales. The Principal would provide the agents with technical and other staffs of their own to assist the agent to run their department smoothly. It was specifically provided that the agent shall not stock, sale or display any articles which were similar to that of the principal and daily sale proceeds would be collected by the agents and paid to the Principal every week after deducting 10% commission. The Principal had to arrange for packing materials, stationery goods which had to bear the name Sub Zero Ice-cream Parlour of India's Hobby Centre Pvt. Ltd. for Kwality Ice-cream products. The Principal had to arrange for packing materials, stationery goods which had to bear the name Sub Zero Ice-cream Parlour of India's Hobby Centre Pvt. Ltd. for Kwality Ice-cream products. The Principal had to bear and pay all the expenses for advertisement and publicity to be carried out by them to popularise the Ice-cream of the Parlour for betterment of the business. It was specifically provided therein that after expiry of 3 1/2 years, the agent shall have the right to terminate the agreement by giving seven months' written advance notice whereas the Principal shall have the right to terminate the agreement after the expiry of twelve calendar months by giving six months' written notice in advance. Under the last clause it was provided that all disputes and questions whatsoever between the parties touching that agreement regarding construction, application, determination of rights and liabilities or as to any act or deed, shall be referred to arbitration of Arbitrators, one to be appointed by each of the parties. The petitioner as a manufacturer and marketer, appointed the defendant as an agent until 31st of October, 1982 under the said agreement. Disputes and differences having arisen by and between the parties the same was referred under the Arbitration Clause to the Arbitration of Mr. Justice R.N. Dutt and Mr. Justice S.K. Roy chowdhury as they then were. Thereafter a compromise was entered into which resulted in the award dated 18th of March, 1982 which provided that during the subsistence of the agreement dated 27th June, 1979 Kwality Ice-creams Ltd. would not open any Ice-cream parlour of their own within the vicinity of one kilometer from No. 1A, Russell Street, Calcutta and would not use the name of Sub Zero Ice-cream Parlour in any other Ice-cream Parlour opened by the Kwality Ice-cream, but that would not prevent the petitioner from selling parlour Ice-cream to Ice-cream Parlours of other parts. Each party was directed to pay and bear its own costs. By notice in writing dated 22nd April, 1982 the petitioner duly terminated the said agreement on the expiry of October, 1982 in terms of the said agreement and served the said notice by registered post with acknowledgement due, on the defendant. Between the period 1979 to 1982 the petitioner had been selling huge quantities of Ice-cream manufactured by it and sold them at prices which ranged from 3,99,000/- even upto Rs. Between the period 1979 to 1982 the petitioner had been selling huge quantities of Ice-cream manufactured by it and sold them at prices which ranged from 3,99,000/- even upto Rs. 26,38,000/- and odd. According to the petitioner the products of the petitioner under the name 'Sub Zero' were known to the public in India and were associated with the Ice-cream of the petitioner and the mark 'Sub Zero' became distinctive with the goods of the petitioner in the Indian market amongst the consumers of Ice-creams. The petitioner applied for registration of the said trade mark 'Sub Zero' with the Registrar of Trade Marks which was accepted subject to the disclaimer as to the exclusive use of "Device of Ice-cream" and it was advertised in the Trade Mark Journal dated 7th July, 1980. 3. ACCORDING to the petitioner the petitioner devised and acquired the trade name 'Sub-Zero' at considerable cost and expenses denoting the Ice-cream Parlour and had promoted and popularised the said Ice-cream Parlour at the premises of the defendant who was merely an agent of the petitioner. The petitioner had taken the pain of giving advertisements in the leading newspapers of Calcutta and also constructed many hoardings prepared by M/s. Hindusthan Thomson Associates Ltd. advertising agents who on behalf of the petitioner conceived the name 'Sub-Zero' and worked at the design and shape of the Sub Zero Parlour. Since the opening of the Parlour in September, 1979 at the defendant's premises and till the termination of the agreement in October, 1982 varieties of Ice-creams exclusively of the petitioner's manufacture with various flavours and concoctions were sold at the said Parlour. The opening of the said Parlour was a great success, Kwality Ice-cream being a name not only familiar but almost a household word with the consumers of Ice-creams in this country and the petitioner claimed to be the manufacturer and seller of top quality Ice-creams. The petitioner claimed that the name 'Sub-Zero' had become associated in the mind of the Consumers/public denoting and signifying a business of the petitioner and also a place where the Ice-creams of varied qualities were sold of the petitioner's manufacture. Under the circumstances, the petitioner claimed that it had a proprietary interest in the name 'Sub-Zero' under which it had been selling Ice-creams of its manufacture through its agent the defendant at and from the said Sub-Zero Ice-cream Parlour. Under the circumstances, the petitioner claimed that it had a proprietary interest in the name 'Sub-Zero' under which it had been selling Ice-creams of its manufacture through its agent the defendant at and from the said Sub-Zero Ice-cream Parlour. Consequently not only the property of interest but also the goodwill attached to the said name 'Sub-Zero' belonged to the petitioner. Under the circumstances if the defendant was allowed to conduct the business of selling parlour Kawality Ice-creams of other manufacturers even after the determination of the said agreement under the name of 'Sub-Zero' that would amount to wrongful adoption of the name 'Sub-Zero' by the defendant which would denote and/or signify and/or suggest that the defendant was connected or associated with the said name. In fact the petitioner contended that the defendant attempted to pass off its business as that of the petitioner and thereby invaded the proprietary right of the petitioner which invasion had created not only a tangible risk but also damage to the petitioner. Inspite of the notice of termination, the defendant has applied to the Registrar of Trade Marks for registration of the name 'Sub-Zero' in their favour. The petitioner claimed to be the owner of a copy right under the title 'Sub-Zero'. Inasmuch as the defendants are still carrying on business of selling parlour Kawality Ice-cream under the said Ice-cream Parlour in the name of 'Sub- Zero' the petitioner had taken out this application for an order of injunction restraining the defendant from doing so. The petitioner craved reference to an advertisement dated 26th October, 1982 in the issue of the Statesman in that respect. 4. THE petitioner contended that for the first time this Icecream Parlour was established in Calcutta with the trade name 'Sub-Zero' under an agreement. According to the petitioner the name was invented by the petitioner. It was popularised by not only investing exorbitant amount of money but also otherwise. It was only under an agency agreement for a period of three years that Kwality allowed the said Parlour to be opened at the defendant's business premises, on a commission basis, for the purpose of earning commission only. THE common public identified the name 'Sub-Zero' with that of Kwality Ice-cream. THE respondent depended on the agreement itself for their alleged right. Apart from that agreement no independent right could exist in favour of the respondent. THE common public identified the name 'Sub-Zero' with that of Kwality Ice-cream. THE respondent depended on the agreement itself for their alleged right. Apart from that agreement no independent right could exist in favour of the respondent. THE various clauses of the agreement provided for the rights and obligations of the parties under the agreement. It was only after the termination of the agreement that the respondent made a claim for the first time over the name 'Sub-Zero' stated to be invented by the Hobby Centre and such application is still pending before the Registrar. Although the petitioner Kwality Ice-cream applied for registration of the copyright of 'Sub-Zero' in the year 1980 no protest had been lodged by the India Hobby Centre. It was only when the agency agreement was determined that India Hobby Centre put forward its claim over the device 'Sub-Zero'. Kwality had already opened Ice-cream Parlours in Bombay, Delhi and the name not only had been invented by the petitioner but it was also popularised by extensive press release entirely at the cost of the petitioner. The respondent India's Hobby Centre was nothing but a commission agent and from whose premises the said parlour was operated for three years upto 31st of October, 1982. In fact the expression 'Sub-Zero' is associated with the products of Kwality. The right of India's Hobby Centre arose or flowed from the agreement only. Apart from that there is no existence of the respondent's right. There is no independent right in respect of the Sub-Zero Ice-cream parlour in favour of the respondents. The parlour only sold Ice-cream, neither any beverages nor any food. Even the petitioner had to train personnel who served such Ice-cream, supplied instruments and technology for operating the said parlour. It was only in the month of May, 1982 that the respondent for the first time put forward its claim over 'Sub- Zero', as part of their goodwill and such application is still pending. 5. IN the case reported in 1899 Appeal Cases P. 83 in the matter of North Cheshire and Manchester Brewery Co., Manchester Brewery Co. Ltd. carried on business under that name for years. The appellants North Cheshire Manchester Brewery Co. was an old business called as the North Cheshire Brewery Co. Ltd. and they had incorporated themselves and were registered under the name of North Cheshire Manchester Brewery Co. Ltd. carried on business under that name for years. The appellants North Cheshire Manchester Brewery Co. was an old business called as the North Cheshire Brewery Co. Ltd. and they had incorporated themselves and were registered under the name of North Cheshire Manchester Brewery Co. It was held that the name of the appellant company was calculated to deceive and therefore they must be restrained by an order of injunction in the usual way. There the test laid down in one sentence by Lord Halsbury was "Whether the name so nearly resembled the name of another firm as to be likely to deceive". 6. IN the case reported in 1972 Patent Cases P. 237 Berkeley Hotel Co. Ltd. v. Berkeley International (Mayfair) Ltd. and Anr., it was held: "The plaintiffs had, prior to its sale in 1968 and demolition in 1969, owned the Berkeley Hotel in Berkeley Street, off Piccadilly, London. This hotel was built in 1870, was generally known as the Berkeley, and was a famous hotel of first class quality with a world-wide clientele. The plaintiffs acquired a new site in Knights bridge on which they were building a new hotel, to be opened under the old name, the Berkeley Hotel, in autumn 1971. The plaintiffs indisputably retained the goodwill which was attached to the old hotel. The defendants commenced a new first-class hotel on the plaintiffs' old Berkeley Street site, the hotel to be opened in 1972 and called the Berkeley International. The suffix international was chosen because the group of which the defendants were members had already acquired another hotel in London called the London International and it was the intention of the group to apply the suffix International to all its hotels. The plaintiffs moved for an interlocutory injunction to restrain the defendants from using the name Berkeley International, and many examples of possible confusion were suggested in evidence or discussed in argument. The defendants contended inter alia that the fact that the new hotel was to be on the old site had to be wholly left out of account in assessing likelihood of confusion." "It was held while granting an injunction, that "there would be a glaring risk of deception or confusion if a first class hotel of International repute was opened on the old site under the name of Berkeley International. The circumstances as to the site could not be disregarded in assessing the likelihood of confusion". Under the circumstances the petitioner submitted that if the business in identical products and at the same venue is allowed to be operated by the respondent it would cause confusion in the minds of the general public. It was not only the name so nearly resembling another but it was the identical name which would induce belief amongst the public or the trade that the business which would be carried on by the respondent is the business of the petitioner in the facts and circumstances of the case. A trader is not entitled to represent that his goods or services are those of another trader. The test habitually applied is whether the name or make applied by the former trader of his goods or services is likely to cause deception or confusion in the minds of the public. Here both the parties are concerned with the name. Although in that case the hotel was not yet opened and there could be no evidence of actual confusion yet there was evidence as to circumstances in which the confusion could arise. In the instant case there could be a glaring risk of deception or confusion by use of the expression 'Sub-Zero' by the respondents. The name is not even too similar but also is identical and for identical products. 7. IN the case reported in AIR 1978 Gujarat P. 216 Simatul Chemical Industries Pvt. Ltd., Nandeshari v. Cibatul Ltd. A Division Bench of that High Court held: "Where no trade marks are used for the products and a manufacturer complains that the likely customer of his goods is apt to be confused by the similarity between the name of his company and the name of some other company which has subsequently started production, though the Court has to apply the test whether such hypothetical consumer could be confused in selecting the goods of the rival Companies by the similarities in their names, the Court has ultimately to form its own opinion on the matter". "The test to be applied is the test of an average person with imperfect recollection. "The test to be applied is the test of an average person with imperfect recollection. The Court has to visualize a customer or a tradesman or a citizen who may happen to have dealings with the Company complaining or who may happen to want to purchase the goods manufactured by such Company and decide whether such a Customer or tradesman or citizen would get confused 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 name of companies in his diary and brings out his diary and contemplates whether he is dealing with one Company or the other" "Where a company (manufacturer) complains that his customers are likely to be confused by similarities in the name of his Company and another company that has started production subsequently, it is not necessary for the plaintiff to show that the words in the names of rival Companies are identical. The plaintiff does not set out to establish that it is a question of the user of an identical name. The plaintiff simply undertakes to show that the two names are so deceptively similar that there is a likelihood of confusion amongst the persons dealing with the two companies". "Where the name of the Company commencing production subsequently is deceptively similar to that of an existing Company, the latter is entitled to restrain the former by injunction from carrying on its business with such a deceptively similar name". "Much to the same effect are the observations of Lord Cozens Hardy M.R. in Ewing v. Buttercup Margarine Co. Ltd., (1917) 2 Ch.1, 10-11. IN that case the plaintiff carried on business under the name of "The Buttercup Diary Company". The plaintiffs' business consisted of 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 authorised it to trade in milk, cream, butter, margarine, etc. The plaintiffs' business consisted of 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 authorised it to trade in milk, cream, butter, margarine, etc. IN confirming the injunction granted by Astbury J. The Mater of the Rolls said: "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 an 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 you 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 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. 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 knew of no authority, and I can see no principle which withholds us from preventing 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 plaintiff's business". 8. IN the case Chill Foods (Scotland) Ltd. v. Cool Foods Ltd., 1977 Reports On Patent Cases P. 522 it was held that it is well settled that the intention to cause confusion is not an essential element of a passing off case. IN that case the promoters having selected a name for their company so similar to that of the petitioners could hardly complain and a deliberate intention to mislead was suspected. It was held: "Three petitions were presented to the Court seeking interdict and interdict ad interim. The petitions arose from a dispute between two individuals. Murray and Dick, who had set up business together by forming a limited company, S and J (Catering Products) Ltd. This company then acquired a company called Chill Foods (Scotland) Ltd. Sometime thereafter Dick decided to form a new company and did so without informing Murray. The new company was called Cool Foods Ltd. Dick also offered the head storeman of S and J. (Catering Products) Ltd. employment with Cool Foods Ltd. Without informing Murry. Dick, a solicitor named Urquhart and Maxwell, S and J (Catering Products) Ltd's area manager for the Ayrshire region, were appointed directors of Cool Foods Ltd. Cool Foods Ltd. started to trade in areas served by S and J (Cattering Products) Ltd. and Chill Foods (Scotland) Ltd. All three companies dealt in frozen foods although catering for slightly different markets. Murray, S and J (Catering Products) Ltd. and Chill Foods (Scotland) Ltd. each raised petitions against, variously Dick : Dick and Maxwell : and Cool Foods Ltd. seeking various interdicts. Murray, S and J (Catering Products) Ltd. and Chill Foods (Scotland) Ltd. each raised petitions against, variously Dick : Dick and Maxwell : and Cool Foods Ltd. seeking various interdicts. The petitioners averred that there had been a restrictive covenant between the parties contained in a document which had disappeared. The respondents denied there was any such document." And it was held in granting various interim interdicts and refusing others: "(1) that the similarity in name between Chill Foods (Scotland) Ltd. and Cool Foods Ltd. was sufficient to give rise to a considerable risk of confusion and that, having regard to the facts a deliberate intention to mislead was the prima facie inference to be placed upon the similarity. (2) that where a right alleged to have been invaded arose out of an alleged contract, especially a restrictive covenant, the very existence of which was denied and in support of which no prima facie case evidence or circumstance could be demonstrated at least a very strong argument on the balance of convenience would be required to justify interim interdict. (3) that in questions of the balance of convenience in interim interdict the Court would protect the long established against the interloper". 9. THE petitioner also relied upon the case reported in AIR 1973 Punjab and Haryana P. 476. 10. THE question that arose for consideration in the instant case was to whom does 'Sub-Zero' belong? It was not only devised, acquired but used by Kwality prior to the claim made by the respondent. THE respondent's right, if any, flew from the agreement where the respondent had been described as an agent of the petitioner who was the Principal. When such serious question is to be tried at the trial it is only fit and proper that an order of injunction be passed in favour of the petitioner. In the case reported in 25 Reports On Patent Cases P. 42 Boussed, Valdon and Co. v. Merchant the facts were as under: "B.V. and Co. formerly carried on business in London and abroad, as dealers in pictures and objects of art under the name of Goupil and Co. and their showrooms came to be known as the "Goupil Gallery" which name was prominently affixed over their London Premises. In 1901 to customers and members of the trade, it had become associated with B.V. and Co. formerly carried on business in London and abroad, as dealers in pictures and objects of art under the name of Goupil and Co. and their showrooms came to be known as the "Goupil Gallery" which name was prominently affixed over their London Premises. In 1901 to customers and members of the trade, it had become associated with B.V. and Co. In 1898 M became the manager of the London branch. In July 1901 an Agreement was entered into between B.V. and Co. and M. who traded as M and Co. By this Agreement B.V. and Co. sold to M and Co. Ltd. the leases of their London premises and gave them, for the term of five years, the exclusive right to describe themselves as agents or sole agents for the United Kingdom of B.V. and Co. successors to Goupil and Co. picture dealers; they also left with M and Co. for the purpose of sale the stock of the business, and agreed to place at the disposal of M and Co. stock to be selected from the stock of B.V. and Co. at Paris, or elsewhere, upon terms set out in the Agreement, M and Co., being in the position of agents as regards some of such stock, but as to other parts selling on their own account. The Agreement also provided that during the continuance M and Co. should not represent themselves as agents of any picture dealers other than B.V. and Co. and that B.V. and Co. should not establish any other house or agency in the United Kingdom. The Agreement contained no provision as to the use of the title "Goupil Gallery" but it was referred to in the negotiations prior to the agreement. On the 15th of August, 1901 a circular, containing letters by B.V. and Co. and by M and Co. was sent out to customers notifying them of the disposal of the London gallery to M and Co. being sole agents of B.V. and Co. in the United Kingdom. After the execution of the Agreement M and Co. commenced to carry on business on their own account as well as selling agents of B.V. and Co. and continued to use the title the "Goupil Gallery". After the expiration of the Agreement of 1901 M and Co. being sole agents of B.V. and Co. in the United Kingdom. After the execution of the Agreement M and Co. commenced to carry on business on their own account as well as selling agents of B.V. and Co. and continued to use the title the "Goupil Gallery". After the expiration of the Agreement of 1901 M and Co. continued to carry on business at the same premises using the title the "Goupil Gallery", but in 1907 B.V. and Co. opened premises in London under that title. B.V. and Co. in 1907 commenced an action to restrain the use of the title by M and Co. and M and Co. counterclaimed against B.V. and Co. claiming similar relief. In July 1906 a Memorandum had been signed by M. under which B.V. and Co. alleged that M. had acknowledged that he had no right to use the title the "Goupil Gallery" but M. alleged that the Memorandum was not binding on him. It was held at the trial that in 1901 the title the "Goupil Gallery" to the clients of B.V. and Co. and members of the public was associated with B.V. and Co.; that the Agreement of 1901 was framed to give M and Co. an opportunity during its continuance of securing the benefit of the connection of B.V. and Co. but leaving B.V. and Co. the right to compete at its termination that this view was confirmed by the circular sent out which was intended to convey that the business theretofore carried on by B.V. and Co. at the "Goupil Gallery", would thenceforth be carried on M and Co. on their own account; that there was no misrepresentation in the use by the defendants of the word 'Goupil' nor any contractual right in the plaintiffs to prevent the use of the title the "Goupil Gallery" that the memorandum of 1906 was not a concluded Agreement; and that the use by the plaintiffs of the expression the "Goupil Gallery" might lead the public to believe that the business opened by the plaintiffs was connected with the gallery and business carried on by the Defendants. The action was dismissed, and a declaration made on the counter-claim that B.V. and Co. The action was dismissed, and a declaration made on the counter-claim that B.V. and Co. were not entitled to use the term "Goupil Gallery" without making it clear that their gallery had no connection with "Goupil Gallery" of the Defendants and the business there carried on, with liberty to apply. The plaintiffs were ordered to pay the costs of the Action and counterclaim. The Plaintiffs appealed, but the appeal was dismissed with costs both as to the Action and Counterclaim". 11. IN the case reported in 1981 (1) A.E.R.P. 23 Cadury Schweppers Pty. Ltd. and Ors. v. Pub Squash Co. Pty. Ltd., it was held: "IN 1974 the appellants began marketing in Australia a lemon flavoured soft drink called "Solo". The soft drink was sold mainly in cans similar to those used for beer and was presented as an alternative to beer. The cans had a distinctive colour and a medallion device similar to that which was common on beer cans. The marketing of Solo was accompanied by an intensive national television and radio advertising campaign emphasising Solo as a drink associated with rugged masculine endeavour and evoking memories of the sort of squash drink hotels and bars used to make in the past. The campaign which, with a short break in 1974 continued until 1977, had a remarkable impact. By early 1975 Solo was selling well. IN 1975 the respondent launched a similar product called "Pub Squash". Pub Squash was sold in cans of the same type and colour as those in which Solo was put up and they also had a medallion device on their label. The marketing of Pub Squash was accompanied by a similar but more modest television campaign which also used the theme of masculine endeavour. IN 1976 the appellants noticed a 15% drop in the sales of Solo which they believed was caused by the advent of Pub Squash and the manner in which the respondent had deliberately taken advantage of the appellants' advertising campaign for Solo. The appellants accordingly brought proceedings against the respondent claiming, inter alia, damages or an account of profits and an injunction in respect of the passing off of Pub Squash as Solo. The appellants accordingly brought proceedings against the respondent claiming, inter alia, damages or an account of profits and an injunction in respect of the passing off of Pub Squash as Solo. The Supreme Court of New South Wales dismissed the appellants' claim on the ground that the respondent had sufficiently distinguished its goods from those of the appellants' and that although the respondent had deliberately taken advantage of the appellants' advertising campaign it had not misrepresented its goods as those of the appellants". The appellants appealed to the Privy Council. And it was held: (1) The tort of passing off was not anchored to the name of trade mark of a product or business but was wide enough to encompass other descriptive material, such as slogans or visual images associated with a plaintiffs' product by means of an advertising campaign, if that material has become part of the goodwill of the plaintiff's product, the test of which was whether the plaintiff had acquired an intangible property right for his product by virtue of the product deriving from the advertising a distinctive character recognised by the market, and in applying that test the Court had to bear in mind the balance to be maintained between the protection of plaintiff's investment in his product and the protection of free competition. (2) On the facts the judge was entitled to find that the two themes used by the appellants in their radio and television advertising campaign although descriptive of the type of product advertised had never become a distinguishing feature of the product or generally associated with it, and that although the respondent in promoting Pub Squash had deliberately taken advantage of the appellants' advertising campaign for Solo the consuming public were not deceived or misled by either the get-up, the formula or the advertising of Pub Squash into thinking that Pub Squash was the appellants' product". 12. IN the instant case prima facie the petitioner had been able to establish that the defendant had attempted to invade its intangible property right in its Ice-cream product which has become recognised by the market as the distinctive product of the petitioner. This of course would not encourage monopoly because the respondent is entitled to use any other name of its choice for the respondent's Ice-cream products. This of course would not encourage monopoly because the respondent is entitled to use any other name of its choice for the respondent's Ice-cream products. India's Hobby Centre could not be described as the new small man entering into an existing market obstructed by large traders already well known. Under the circumstances this Court passes an order of injunction in favour of the petitioner Kwality Icecream. Costs costs in the cause. On the prayer of Mr. Sarkar stay is granted for a week.