M. K. Chawala ( 1 ) THE plaintiff company is engaged in the manufacture and sale of Arc Electrodes. The plaintiff company is a unit of Modi Industries Ltd. which commenced the business of manufacture and selling of Arc Electrodes in the year 1962 63 under the trade mark trade name modi On account of continuous extensive and exclusive user of the said trade name, modi has acquired a vast and enviable reputation in respect of the Arc electrodes. This trade mark is also an integral key portion and/or essential feature of the trading style "modi Arc Electrodes Company". Apart from that, the plaintiff is also the registered proprietor of the trade mark Modi under registration No. 229511 dated 14th of June 1965 under the Trade and Merchandise Marks Act. The said registrationis valid and subsisting. By virtue of the long user the plaintiff has the exclusive right to use the trade mark Modi in relation to Arc Electrodes. The defendant Modi Welding electrodes Pvt. Ltd. without the consent, licence or permission of the plaintiff has recently adopted the use of the trade mark/trade name Modi in relation to arc electrodes of its manufacture and sale. The plaintiff came to know of this in the month of May, 1982 that the defendant had got himself registered with the Registrar of Companies Jaipur. The plaintiff immediately served the defendants with a notice dated 3-5-1982 requiring them to desist from using the trading style Modi Welding Electrodes (P) Ltd. or any other trading style of which the word Modi forms an essential or key portion. The defendants have, however, declined to comply with the requisitions of the plaintiff. The defendants for the first time advertised on 21-6-1982 in the Nav Bharat Times. New Delhi the introduction of welding electrodes manufactured and sold by it under the impugned trade name/trade mark MODI. On these allegations the plaintiff was left with no other option but to file the present suit seeking a decree for permanent injunction restraining the defendants, its servants and agents from manufacturing, selling offering for sale, advertised directly or indirectly or dealing in Arc Electrodes under the trade name Modi or from using the word Modi as a key portion of its trading style The restraint order for passing off their goods as that of the goods and business of the plaintiff for the rendition of accounts was also prayed for. ( 2 ) ALONGWITH the suit the plaintiff also preferred TO to file an application, LA. 2599 of 1982 under Order 39 Rules 1 and 2 C. P. C. After hearing the learned counsel for the plaintiff on this application an ex-partead interim injunction as prayed was granted. The defendants were further restrained from using the word Modi as its trading style till then. immediately on the service of the summons of the suit as well as the injunction order, the defendants filed the written statement and reply to the application. The defendant took up the stand that the trade mark/trade name of the defendant is "weldment" and not Modi. The get up is also absolutely different and there is no similarity whatsoever between two trading names and there is no question of any confusion to customers of the plaintiff, being mis-led by the distinct trade mark of the defendant. It is also alleged that the promoters of the defendant company are also Modi by caste i. e. Shri Ramji Das Modi is the Chairman of the defendant company, while Shri Ram Niwas Modi is the Managing Director and as such are entitled to have the company named by using their sir name. The defendants have their other number of business running in the name of Modi for the last many years and as such they are entitled to use their sir name for their business. Furthermore even in the advertisements the defendants have given their trade name as the weld-ment prominently and below it the name of their company is mentioned. The defendants have thus acquired their own reputation, under their own trade mark Weld-ment and they have now used the trade mark Modi for their product. Not only the names are absolutely distinct but the head office of the parties is also situated at two different places. The defendants have not passed off their goods as those of the plaintiff nor have they earned any illegal profits. The suit of the plaintiff being false to their knowledge merits dismissal. ( 3 ) ON the same lines the defendants filed reply to the plaintiff s application under Order 39 Rules 1 and 2 C. P. C. ( 4 ) I have heard the arguments of the learned counsel for the parties and with their help gone through the record carefully. Most of facts are not in dispute. ( 3 ) ON the same lines the defendants filed reply to the plaintiff s application under Order 39 Rules 1 and 2 C. P. C. ( 4 ) I have heard the arguments of the learned counsel for the parties and with their help gone through the record carefully. Most of facts are not in dispute. The plaintiffs started manufacturing and sale of the their Arc Electrodes in the year 1962-63 under the trade mark/trade name Modi whereas the defendants have come in this line only in the year 1982. The plaintiff is also the registered proprietor of the trade mark in respect of electrode for electric arc weldings under the Trade and Merchandise Marks Act, while the defendant has yet to get himself registered. It is also not disputed that immediately after coming to know of the defendants having entered in this trade, the plaintiff filed the present suit on 19-7-1982. ( 5 ) THE case of the plaintiff is that the use of its registered trade mark Modi as a trade mark or as a part of the trade name by the defendants amounts to an act of infringement and passing off. Section 2 (j ) defines the expression "mark". It includes a device, brand heading, label, ticket, name, signature, word, letter or numeral for any combination thereof. Section 2 (v) (ii) defines the "trade mark" : in relation to the other provisions of this Act, a mark used or proposed to be used in relation to goods for the purpose of indicating or so as to indicate a connection in the course of trade between the goods and some person having right either as a proprietor or as a registered user, to use the mark whether with or without any indication of the identity of that person, and inclu- des a certification trade mark registered as such under the provisions of Chapter VIII". It is not denied that the plaintiff s trade mark is registered under the provisions of Trade and Merchandise Marks Act. By virtue of Section 28 of the Act an exclusive right has been conferred on the plaintiff by the statute to the use of same. Under Section 29 of the Act, the user of any mark, which may be identical or deceptively similar to the trade mark of the plaintiff, shall constitute an infringement. By virtue of Section 28 of the Act an exclusive right has been conferred on the plaintiff by the statute to the use of same. Under Section 29 of the Act, the user of any mark, which may be identical or deceptively similar to the trade mark of the plaintiff, shall constitute an infringement. Section 31 of the Act provides that the registration of a trade mark under the provisions of this Act, shall be prima facie evidence of the validity thereof. ( 6 ) AS per the averments which are prima-facie admittedly to be correct, the plaintiff having established vide reputation and goodwill to its business name Mod Arc Electrodes and Modi being the key portion of the plaintiff s trade name is entitled to its exclusive use and protection under the law relating to passing of. The defendant in the instant case has adopted the word Modi as key portion of its trade name Modi Welding Electrodes (P) Ltd. In both the names the word "arc Electrodes and" WeldingElectrode means one and the same item of goods. In the recent judgment of own court reported as B. K. Engineering Company v. Ubhi Enterprise (Registered} and another1 the Division Bench of this Court has taken into consideration the law relating to passing off applicable in various countries and held, that the use of the trade mark as part of their name or vice versa is prohibited under the law passing off. The law of passing off is an action to restrain deceit, fraud and mis-appropriation of the name and the goodwill of another. It may be qua the goods or qua the business. ( 7 ) IT is not necessary to prove that the defendant in taking the name complained of by the plaintiff had any fraudulent intent. It is enough if the plaintiff proves that the act of the defendant in assuming the name complained of is an injury to the plaintiff s right. The fundamental principle is that the person shall not trade under a name so closely resembling that of the plaintiff as to be mistaken for it by the public. ( 8 ) THE sole question is whether the use of the mark/name on the part of the defendant is such which is likely to cause confusion or deception in the mind of unwary class of customers having imperfect recollection or not. ( 8 ) THE sole question is whether the use of the mark/name on the part of the defendant is such which is likely to cause confusion or deception in the mind of unwary class of customers having imperfect recollection or not. Keeping in view the fact that the Arc electrodes are normally purchased by unwary class of purchasers like Mistries and Karkhandars, the confusion and deception is bound to occur leading to passing off. ( 9 ) THE main defence raised by the defendant is that it is using the word modi as its own name and he is entitled to do so by virtue of Section 34 of the Trade and Merchandise Marks Act. The bare perusal of this section would go to show that no man is entitled to carry on his business in such a way as to represent that it is the business of another. However there is an exception to this proposition, namely, that a man is entitled to carry on his business in his own name so long as he does not do anything, which is likely to cause confusion and deception. Kurley on the Law of Trade Marks and Trade Names (llth edition) at paragraph 1685 page 386 states as under : "a new company with a title of which the name (A) for instance forms part, has none of the natural rights that an individual born with the nare of a would have"the defendant company being a new company at the time of the institution of the present suit, in my opinion cannot enjoy any of the natural rights that an individual born with the name Modi would have and as such is not entitled to take the plea of Section 34 of Trade and Merchandise Marks Act. The said plea can only be taken by an individual born under the name modi and carrying on business under the said name in a bona-fide manner. ( 10 ) LEARNED counsel for the defendants then contended that they are not using the word Modi as a trade-mark. Their trade-mark is in fact, Weldment. The colour scheme of the two wrappers is quite different and there is no question of causing any confusion in the mind of the general public. According to the learned counsel the defendants have only pasted a slip on the wrappers indicating the source of the manufacture in India. Their trade-mark is in fact, Weldment. The colour scheme of the two wrappers is quite different and there is no question of causing any confusion in the mind of the general public. According to the learned counsel the defendants have only pasted a slip on the wrappers indicating the source of the manufacture in India. On this slip only the firm name has been mentioned and as such there is no question of violating the trade mark of the plaintiffs. The said contention of the learned counsel for the defendant prima facie is devoid of any substance. The definition of the mark and trade mark as reproduced above and the principles of law applicable clearly establish the fact that the use of a trade name in respect of vendible articles so as to indicate a source of manufacture is deemed to be the use as a trade mark. In fact the plaintiff s case is based on the said proposition of law. The question that the carton of the defendant is different from that of the plaintiff has got no bearing in the instant case, for the simple reason, that the relief of infringement of trade mark and passing off is claimed by the plaintiff and there is no claim with regard to infringement of copyright pertaining to the carton. The defendants being a new comer and the present suit having been instituted within one month of having declared their intention to introduce electrodes in the market, can claim no better right than the plaintiff whose user is admitted since 1932 and in view of the registration of the trade mark in their favour. ( 11 ) LEARNED counsel for the defendants has lastly resorted to the judgment of this court reported as Shri Thakur Dass v. M/s Samrat Sales Corporation2 suit No. 953 of 1984 decided on 24-12-1984 wherein the defendant was allowed to use the trading style samrat Sales Corporation as against the plaintiff s trade mark samrat in respect of the cycle parts including saddles, carriers and fittings. This decision prima-facie is of no assistance to the defendants. The defendant in that case was not using the word "samrat" in relation to any goods. He was merely a retail shop keeper selling cycle parts of various manufacturers. This decision prima-facie is of no assistance to the defendants. The defendant in that case was not using the word "samrat" in relation to any goods. He was merely a retail shop keeper selling cycle parts of various manufacturers. As a matter of fact it was found that the defendant was not selling the cycle parts under the trade mark Samrat. It was also found as a fact that the plaintiff had allowed the defendants to use their trading style for a period of two years. On that basis the plaintiff s application restraining the defendants from using the trading style as Samrat SalesCorporation was not accepted. ( 12 ) IN the instant case the defendant warned at the earliest opportunity not to use modi as a key portion of his trading style trade name for the purpose of Arc Electrodes Welding Electrodes. Being a new comer in the trade as compared to the established user of the plaintiff, was bound to be restrained at the earliest opportunity, by the issuance of an ad-interim injunction granted by this court on 21-7-1982 which is still continuing. The plaintiff in my opinion has established a prima-facie case for the infringement and passing off of and the balance of convenience also lies in favour of a person which has established himself in the trade as against a person who has just started manufacture and sale of the electrodes. Furthermore, the defendant will not suffer any irreparable injury as they were restrained from using the said trade name at the start of their business. On the other hand the plaintiffs are bound to suffer an irreparable injury to its reputation, if the defendant is allowed to use the plaintiff s registered trade mark Modi as part of their name. ( 13 ) AS a result of the above discussion I accept the application and confirm the ad interim injunction already granted in favour of the plaintiff by this court on 21-7-1982. Any observation made in this order will have no bearing on the merits of the case.