M. K. Chawla ( 1 ) BY this order I propose to dispose of the plaintiff s application 1a 3602/83 under Order 39 Rules 1 and 2, Civil procedure Code for the grant of ad interim injunction restraining the defendants, their servants agents, representatives and dealers from manufacturing, selling, offering for sale and/or otherwise directly or indirectly dealing in rubber sheets for the soles of footwears and other allied goods under the trade mark TANY and/or any other mark which may be identical to or deceptively similar to the trade mark TINNA of the plaintiff. ( 2 ) IN order to dispose of this application few salient features of the plaintiff suit have to be kept in mind. The plaintiffs are engaged in the manufacture and sale of "rubber sheets for the soles of footwear, banwar, canvas shoes and footwears. ; that the plaintiffs are the proprietor of the trade mark TINNA (Label) with registration No. 326557 which mark is being used by the plaintiffs continuously and uninterruptedly; that by virtue of the agreement dated 1. 1. 1982, the registered proprietor of this trade mark, have assigned the same along with the goodwill of the business to M/s. Tinna Enterprises Private Ltd. to the plainiff herein; that the plaintiff company and its predecessor are applying a distinctive trade mark TINNA in English as well as in Hindi on their product since 1974: that by virtue of the above registration and by virtue of long and established user, the plaintiffs have acquired an exclusive right to the use of the trade mark TINNA; that the trade mark TINNA forms a key portion of the plaintiffs fading style M/s. Tinna Enterprises Private Ltd. ; that the sales of the aforesaid goods of the plaintiffs runs in several lakhs of rupees; that the plaintiffs and its predecessor have given wide publicity to their trade mark T1nna through various advertising media as a result of which the goods under the trade mark TINNA connotes and denotes the goods and merchandise of the plaintiffs goods and none else. ( 3 ) THE defendants have recently started the manufacture and sale of identical goods i. e. "rubber sheets for the soles of footwears" under the identical and/or deceptively similar trade mark TANY, that the use and adoption of the trade mark TANY by the defendant is a clear and flagrant violation of the legal vested rights of the plaintiffs in their well known and established trade mark TINNA, that the defendants trade mark is identical and/or deceptively similar phonetically, visually and structurally to the registered trade mark TINNA of the plaintiffs, which are being used in respect of the identical goods; that the defendants have deliberately adopted the plaintiff s trade mark with a dishonest and malafide intention to earn profits by illegal manners to which they are not entitled; that the purchasers of the said goods arc the illetrate shoemakers and workers which demand and recognise the plaintiffs product by the trade mark/label; that the confusion and deception is inevitable among the public and the trade, due to close and deceptive similarity of the trade mark TINNA. TANY that the defendants are thus guilty of infringement and passing off their inferior and sub-standard product as and for the quality products of the plaintiff. ( 4 ) ON 13. 8. 83, the plaintiffs sent a legal notice to the defendants calling upon them to give up the use of the trade mark TANY in respect of rubber sheets for the soles of footwears, but the defendants are avoiding service. Hence, the present suit praying for a decree for permanent injunction restraining the defendants, their servants and their agents from using the trade mark TANY or any other trade mark identical and/or deceptively similar to the plaintiff s registered trade mark T1nna in relation to rubber sheets for the soles of footwears and other allied goods which is an infringement of the plaintiffs registered trade mark No. 326557. ( 5 ) THE defendants in their written statement and reply to the plaintiff s application raised a number of preliminary objections to the maintainability of the suit as well as the application. ( 5 ) THE defendants in their written statement and reply to the plaintiff s application raised a number of preliminary objections to the maintainability of the suit as well as the application. The preliminary objections inter alia are that the defendants adopted the trade mark TANY prior in time than that of the plaintiffs; that the plaintiffs have no locus standing to file the suit against the defendants inasmuch as they are not the registered proprietor of the trade mark T1nna; that the plaintiffs have not filed the certificate for use in legal proceedings and as such the suit is liable to be dismissed on this score; that the suit is not properly valued for purposes of court fees and jurisdiction; that the plaintiffs have not come to this Court with clean hands and have suppressed material facts. ( 6 ) ON merits, however, put up the defence that the plaintiffs are not the registered proprietor of the trade mark T1nna (label) under No. 326557 in Class 25 as it stands registered in the name of a different legal entity; that the trade mark T1nna CUSHION label is registered in respect of Rubber, Banuser, Canvas shoes and footwears, included in class 25 and not in respect of rubber sheets for the soles of footwears as that of the defendants; that the plaintiffs have not acquired, any right to the use of the trade mark T1nna as alleged, nor have they acquired any goodwill amongst the trade and the general public. On the other hand the defendants and/or their sister concern have been using the trade mark TANY since the year 1968 continuously and extensively which mark is not identical and /or deceptively similar to the alleged trade mark T1nna of the plaintiffs; that the trade mark of the plaintiffs is a feminine personal name which is well known, while the trade mark TANY of the defendants is also a personal/nick name well known to the public; that the two personal names cannot be confused witheach other and there is no scope of any confusion or deception as alleged; that. the writing style, get up or place of words used by (he defendants are quite distinct to the words used by the plaintiffs on their goods; that the defendants adopted the trade mark TANY in the year 1968 prior to the adoption of the trade mark by the plaintiffs some time in the year 1974; that the adoption of the trade mark by the defendants is honest, bonafide and prior in time than that of the plaintiffs; that there is no scope for any confusion amongst the general public or the intending purchasers of the goods of the parties. The defendants, thus, are not guilty of infringement and passing off their goods as those of the plaintiffs as alleged. The suit of the plaintiffs being false to their knowledge merits dismissal. ( 7 ) ON the same grounds the defendants file the reply to the plaintiffs application supported by the affidavit, of Sh. O. P. Laul, one of the partners of the defendant firm. ( 8 ) I have heard the arguments of the learned counsel for the parties and with their help gone through the record carefully. ( 9 ) ORIGINALLY Sh. Bhupinder kumar Sekhri, Sh. Gautam Sekhri and Smt. Veena Malhotra were running the business of manufacture and sale of rubber, Banuser, Canvas Shoes and footwears under the name and style of TINNA RUBBER PRODUCTS. They were the registered proprietor of the trade mark T1nna rubber sheets (Label ). On 1st January, 1982 these very partners of T1nna Rubber Products entered into an agreement with M/s. TINNA Enterprises Private Ltd. . the plaintiff in this case, whereby plaintiff became entitled to carry on the said business in connection with the vendor firm. The plaintiffs also became the successor of all licences quota rights and trade mark connected with the business of the vendors. The predecessors assigned the registered trade mark along with the goodwill of the business to the plaintiffs. Subsequently. the plaintiffs made a request before the Registrar of trade marks that their names may be substituted. This request has since been allowed by the Registrar of trade marks. From 1. 1. 82 onwards the plaintiffs are continuously and uninterruptedly using their trade mark T1nna with respect to the goods under class 25. Subsequently. the plaintiffs made a request before the Registrar of trade marks that their names may be substituted. This request has since been allowed by the Registrar of trade marks. From 1. 1. 82 onwards the plaintiffs are continuously and uninterruptedly using their trade mark T1nna with respect to the goods under class 25. ( 10 ) IT is the case of the defendants that they adopted the trade mark TANY in the year 1938 prior to that of the plaintiffs. It is also their defence that the two marks are not identical to each other inasmuch as they are the two well known personal names which cannot cause confusion amongst the purchasing public. ( 11 ) IN order to set at nought the case of the plaintiff, the defendants are required to prove on record by cogent documentary evidence of their prior adoption of the trade mark TANY. Unfortunately, the defendants have not placed a single document showing the use of their trade mark TANY in respect of rubber sheets since 1968. Even during the course of hearing arguments the learned counsel for the defendant was not able to point out any oral or documentary evidence in support of this assertion or place on record any additional document indicating their prior adoption or use of this trade mark On the other hand the plaintiffs have placed numerous documents on record proving conclusively their adoption of the trade mark TINNA since 1974. Furthermore, the plantiffs have also placed on record the affidavits of Sh. Bhupinder Kumar, Baldev Raj, Yash Pal and Vijay Kumar, who are dealing in rubber sheets for the soles of footwear and leather goods under various trade names. They are in the market since 1962. All of them deposed that the plaintiffs are a well known and reputed manufacturers of rubber sheets for the soles of footwear under the trade-mark T1nna and they are in this trade since 1974. All of them had dealings with the plaintiffs and are fully aware of the goodwill and reputation in the market because of the superior quality of their goods. They further deposed that the defendant s from used to deal in the manufacture and sale of rubber sheet under the trade mark national and have started using the trade mark TANY sometime in the month of August, 1983. They further deposed that the defendant s from used to deal in the manufacture and sale of rubber sheet under the trade mark national and have started using the trade mark TANY sometime in the month of August, 1983. The predecessor of the defendants were using the trade mark J-KISAN AND ATLAS in respect of their goods. M/s. Popular Rubber Industries, the predecessor of the defendant, never used or sold their goods under the trade mark TANY in the market nor at any time advertise this trade mark through advertising media. The defendants, unfortunately, have not cared to deny the averments of these personos nor have they filed any counter affidavits of their dealers who might have been purchasing the rubber sheets under the trade mark TANY from the defendants. All these facts taken together leave no doubt in my mind that the plaintiffs adopted and used the trade mark TINNA much prior in time than the defendants. ( 12 ) FACED with this difficulty, learned counsel for the respondent tried to make out a case that the two trade marks are quite distinct from each other and there is no likely of any confusion in the trade and the purchasing public. According to him there are fine distinctions in between the two products; such as: A) The plaintiffs mark has five letters whereas the defendant s mark consists of four letters: b) There is a difference in pronounceation of the two marks; c) There is a vast difference in writing, speaking and hearing of the two marks; d) TINNA is a feminine personal name whereas TANY is a boy s name; e) There is a difference in length of the mark; f) Both the words are different phonetically, visually as well as dissimilar in the names; g) Both the words are not invented words. ( 13 ) IN face of these distinctions the two marks there is no possibility of any confusion and the defendants cannot be slid to have passed off their goods as that of the plaintiffs. In support of his submission learned counsel relied upon the observations from a book by Dr. S. Venkateswaran on the law of Trade and Merchandise. The relevant portion reads as under : "in comparing two words the tribunal will consider whether or not the words convey any meaning to the ordinary purchaser. In support of his submission learned counsel relied upon the observations from a book by Dr. S. Venkateswaran on the law of Trade and Merchandise. The relevant portion reads as under : "in comparing two words the tribunal will consider whether or not the words convey any meaning to the ordinary purchaser. Three type of cases may arise: (1) where both the registered trade mark and the mark seeking registration are ordinary words well understood by the public, each word conveying a different meaning or idea; (2) where the mark already on the Register is an invented word conveying no intelligible idea or meaning, and the mark applied for registration is an ordinary word easily under stood by the public, and conveying a definite meaning, and vice versa, and (3) where both the registered trade mark and the applicant s mark are invented words. In the first two cases the test of similarity will be less stringent than in the third case. Where the two words convey different meanings, or where one of the words conveys a meaning while the other is meaningless, the application may be allowed although the similarity may be sufficient to justify a refusal when both words are invented words and do not convey any meaning to the public. " ( 14 ) LEARNED counsel also placed reliance on a judgment reported as V. R. Subramaniyam trading as Manyam and Co. Vs. V. N. M. N. Balasubramania Nadar and Others, AIR 1967 Madras 186, wherein on consideration of all the facts the Court came to the conclusion that the mark Roji, is not deceptively similar or likely to deceive or cause confusion amongst the purchasers of the goods of the applicant under the trade mark raja . ( 15 ) EVEN this argument has no substance and the same stands demolished from the admission of the defendants themselves. It is not disputed that after the institution of the present suit on 6 9. 1983, the defendants filed C. O. No. 9/ 84 on 27. 3. 1984 praying for the removal and/expunging the trade mark No. 326557 in Clause 25, of the plaintiff, alleging therein that the plaintiffs have obtained the trade mark t1nna by concealing the material facts and making false statement. The defendant raised number of ground for the cancellation of the said trade mark. Grounds No s and u are relevant for our purposes. The defendant raised number of ground for the cancellation of the said trade mark. Grounds No s and u are relevant for our purposes. s. That the use of the trade mark tinna by the respondents in respect of the said goods, is likely to/cause confusion and deception amongst the purchasing public and thus it was not entitled to registration on the date of application. " The next ground reads as under :- u "that the use of the trade mark tinna by the respondent and the goods sold there under arelikely to be passed off as goods of the petitioner manufacturer. " ( 16 ) THESE grounds amongst others, is the complete answer to the defence now sought to be raised for the dismissal of the plaintiff injunction application. ( 17 ) EVEN otherwise these arguments have no relevancy to the facts of the present case. It is not disputed that both the parties are exclusively engaged in the manufacture and sale of rubber sheets for the soles, banwar, canvas sheets and footwears and canalising their product through the same channel. The plaintiffs are manufacturing 25 kinds of rubber seets and rubber soles under the trade mark TINNA whereas the defendants have come out with two kinds of rubber sheets for the sole of footwears under the trade mark TANY. Normally such like goods are being purchased by the illiterate shoemakers and workers who can be said to be an unweary class of purchasers. They are not excepted to draw a fine distinction in the number of letters used in this to trade marks or to remember, if it relates to a feminine name or a boy s name, or to measure the difference in the length of the mark. Even for an intelligent purchaser it will be difficult to draw out any distinction in these two marks, as suggested by the learned counsel for the defendant, what to talk of an illiterate person. The resembalance between the two marks has to be considered with reference to the ear, as well as the eye, and ocular comparision sometimes is not always the decisive test. Even if there be no visual resembalance between the two marks, that does not matter when there is a close affinity of sound between word, which are the distinctive features of the two marks. Even if there be no visual resembalance between the two marks, that does not matter when there is a close affinity of sound between word, which are the distinctive features of the two marks. Merely because the distinctive words used in both the marks have distinctive meanings it cannot be said that the phonetic resembalance does not lead to confusion when it is likely that majority of the customers are not capable of understanding the fine distinction between the meaning of the two words. ( 18 ) IN an action for infringement where the defendant s trade mark is indentical with the plaintiff s marks, the Court will not enquire whether the infringement is such as is likely to deceive or cause confusion. It is well settled law that the gist of a passing off action is that party A is not entitled to represent his goods as the goods of party B, but it is not necessary for party B to prove that party A did this knowingly or with any intent to deceive. It is enough that the get. up of B s goods has become distinctive of them and there is a probability of confusion between them and the goods of A. No case of actual deception or any actual damage need be proved, in such like cases. ( 19 ) IN the present case the simple comparison of the two marks leads to the only conclusion, that not only phonetically but also visually the two marks are quite similar or in any case deceptively similar to each other and there is every possibility of the defendants passing off their goods as those of the plaintiffs, who have come in this trade much prior in time than that of the defendants. The adoption of the TANY mark by the defendants prima facie appears to be a dishonest one, particularly when their factory is only a kilometre away from the factory of the plaintiff s. ( 20 ) THE plaintiffs have not only established a prima facie case as to their right to the property but have also succeeded in establishing that the balance of convience lies in their favour. In passing off cases, as observed earlier the plaintiffs right in the property and the good-will of his business have to be protected. In passing off cases, as observed earlier the plaintiffs right in the property and the good-will of his business have to be protected. The plaintiff in may opinion, will suffer irreparable injury, in case the likely confusion in the sale of the product by the defendant is not stopped The defendants have not placed any material on record to suggest that before the service of the notice, they have established themselves in the trade or have spent any amount on the advertisement of their product. ( 21 ) AS a result of the above discussion I accept the application and restrained the defendants, their servants, agents, representatives, dealers and all other persons on their behalf from using the trade mark TANY or any other trade mark indentical and or deceptively similar to the plaintiff s trade mark T1nna. in relation to rubber sheets, for the soles of footwear and other allied goods, as the same is likely to cause confusion and deception amounting to passing off their goods as the goods of the plaintiffs , till the disposal of the main suit. No Costs.