B. N. Kirpal ( 1 ) THIS order will dispose of plaintiff s application under Order 39 rules 1 and 2 for an injunction restraining the defendants from using the name CHOICE in respect of the articles which are being sold by the defendents. ( 2 ) BRIEFLY stated, the allegations of the plaintiff are that the plaintiff is manufacturing television sets and marketing them under the trade name of CHOICE. It is further alleged that sometime in 1986 the defendants were appointed as dealer of the plaintiff and the defendants were also selling those sets. This agency now seems to have been terminated. ( 3 ) THE grievance of the plaintiff is that the defendants have advertised and are selling some other appliances under the trade name of "choice". These appliances are sewing machine, fans and exhaust fans, electric iron, geysers, washing machine, water filter, hot plates and room coolers. According to the plaintiff the said goods which are being sold by the defendants belong to the same trading channel as that of the plaintiff and, therefore, an injunction should be issued as the defendants are likely to pass off the said goods as the goods manufactured by the plaintiff. It is further the case of the plaintiff that an advertisement has been inserted by the defendants using an identical logo to that of the plaintiff. In that advertisement the letter o is represented by a somewhat round T. V. Screen and this is stated to be a letter which has been devised by the plaintiff and is one which the defendants cannot use. ( 4 ) THE defendants have contended that the use of the logo, similar to the one of the plaintiff, was a mistake of the advertising agent and this mistake has been corrected and the defendants have no intention of using the logo similar to that of the plaintiff. The defendants, therefore, do not object to an injunction being issued restraining the defendants from using the logo of Choice similar to that of the plaintiff. ( 5 ) IT is, however, contended on behalf of the defendants that this is not a case where an interim injunction can be granted. The defendants, therefore, do not object to an injunction being issued restraining the defendants from using the logo of Choice similar to that of the plaintiff. ( 5 ) IT is, however, contended on behalf of the defendants that this is not a case where an interim injunction can be granted. It is submitted by Shri Mangia that two sets of goods in the present case, namely, the televisions manufactured by the plaintiff and the appliances which are being sold by the defendants cannot be regarded as allied or cognate. The second submission of the learned counsel for the defendants is that the plaintiff has been in business only for 3 years and its user is not sufficiently long as to give it an exclusive use. It is further submitted that the television which is manufactured by the plaintiff falls under class 9 of the Trade Mark Rules, Schedule IV while sewing machine fall under class 7, hot plates etc. under class 11 and other domestic appliances fall underclass 21. According to the learned counsel for the defendants, the trade mark of the plaintiff is not registered and it cannot get an absolute monopoly of the said mark. It is further submitted that at best it can get a monopoly or a restraint order only with regard to the class of goods which fall in class 9. ( 6 ) A large number of cases have been cited by the plaintiff and the defendants in respect of their rival contentions. The plaintiff has cited cases to show that goods which do not, in the first flush, appear to be similar have been held to fall under the same trade channel. Some of the cases are (1979) R. P. C. 19, AIR 1983 Punjab and Haryana 418, AIR 1985 Allahabad 242, (1973) R. P. C. 560 and (1975) R. P. C. 171 ( 7 ) ON behalf of the defendants, my attention has been drawn to some of the orders passed by this Court in an effort to show that the goods in question do not fall in the same trading channel. The learned counsel has relied upon the order of R. N. Aggarwal, J. (As he then was) passed in Suit No. 1310 of 1981 decided on 28th January, 1982, United Brothers v. United Traders. 1 In that case the plaintiffs were manufacturing aluminium hollow-ware utensils like tiffin boxes etc. The learned counsel has relied upon the order of R. N. Aggarwal, J. (As he then was) passed in Suit No. 1310 of 1981 decided on 28th January, 1982, United Brothers v. United Traders. 1 In that case the plaintiffs were manufacturing aluminium hollow-ware utensils like tiffin boxes etc. while the defendants were manufacturing spoons, forks and knives and this Court held that the goods manufactured by the two parties were not allied goods. Reliance was also placed on 1988 P. T. C. 98 where a single Judge of this Court held that the flourescent tube or lamp was a distinct commodity from choke which was used. In Hindustan Pencils Private Ltd. v. Prem Chand Gupta,2 this Court had held that pencils, sharpners, erasers etc. which were the products of the petitioner-therein and the respondent s products, namely, mathematical instruments and water colours were not goods of the same description. Reliance was also placed by the learned counsel on Nestle s Products Ltd. and others v. Milkmade Corpn. and another,3 London Rubbur Co. Ltd. v. Durex Products Incorporated and another,* and Mis. Parry and Co. Ltd. Madras v. M/s Perry and Co. Usilampatti Madurai6 and it was contended that it was necessary that the goods in question should be of the same category or of the same nature before any injunction can be issued. ( 8 ) THIS is a case where the mark of the plaintiff is not registered under the Trade Marks Act. The plaintiff, therefore, is unable to invoke the provisions of Section 29 of the Trade Marks Act. The action which has been initiated by the plaintiff has to be dealt with under the head of passing off. If the goods manufactured by the defendants are likely to cause confusion and deception and are likely to be regarded as the goods which have been manufactured by the plaintiff then in an action under the head "passing off " the plaintiff would be entitled to an injunction against the defendant. In order to maintain an action for passing off it is not relevant, and it has been so held in 6 R. P. C. 318, as to whether the respective goods fall under the same or different classes. In order to maintain an action for passing off it is not relevant, and it has been so held in 6 R. P. C. 318, as to whether the respective goods fall under the same or different classes. What is to be seen is whether the types of goods which are sold belong to the same category or are in the same trading channel or are allied products. In the present case what is being manufactured by the defendants are domestic appliances. These domestic appliances are nonelectrical as well as electrical. Sewing machine, water filters, pressure cookers are non-electrical appliances while geysers, washing machine, hot plates etc. are electrical appliances. While sewing machine falls under a class different from hot plate under Schedule IV of the Trade Mark Rules, nevertheless goods belonging to different classes are being manufactured and sold by the defendant under the same trade name. namely, Choice. This tends to lend support to the contention of the plaintiff that even though goods may fall under different classes but they are in the same trading channel and can cause confusion and deception to pass off as the goods of the plaintiff. In this connection reference has to be made, in some detail, to a Division Bench decision of this Court in the case of Mis Jugmug Electric and Radio Co. v. Mis Telerad Private Ltd. 6 In that case the respondent-therein was manufacturing television sets while thepetitioner was manufacturing domestic appliances. The television sets which were manufactured were covered by class 9 while domestic appliances which were being manufactured by the petitioner- therein fell under class 11. The question arose whether the trademark authorities were right in cancelling the registration of the petitioner s trade name Telerad. It was not in dispute that the respondent-therein was the registered owner of the trade mark Telerad in respect of televisions. The centention of the respondent in that case was that confusion or deception in the minds of the customers was likely to be caused because the goods of the appellant and those of the respondent have the same trade channel and were even being sold in the same shops. This Court accepted the cotentions of the respondent and observed as under : "firstly, the affidavit of Mr. This Court accepted the cotentions of the respondent and observed as under : "firstly, the affidavit of Mr. Todi filed in favour of the respondent shows that many well known firms like GEC, TELEFUNKEN, PHILIPS, SIEMENS, HGEC, NATIONAL, GE, and REMCO manufacture not only radios but other domestic appliances like heaters, iron toasters, etc. This fact is so well known over the years that even judicial notice can be taken of them. There is absolutely no rebuttal of it by the appellant. It is true that the respondent has not extended its manufacturing activity beyond the radios and television sets to include domestic appliances. But the respondent is also a well known firm of Sarabhais. If the above-mentioned well known firms could manufacture both the radios as well as domestic appliances, the impression carried by customers would be that such big firms are capable of manufacturing both the kinds of goods. The respondent being such a firm, the customers can have the same impression about it as they have about the above-mentioned firms. The first source of confusion or deception which is, therefore, not only likely but very probable springs from the fact that manufacture of both these types of goods is often done by the same firms. The reason is obvious. They both involve electrical engineering and technology. "it is true that the wireless is one branch of the said technology while the domestic appliances which use electric wires is another branch of it. Such theoretical difference, however, is not shown to be material by the very fact that in practice most of the reputed electrical manufacturers in India have chosen no manufacture both kinds of goods. Obviously, the theoretical difference between the two types of goods is no barrier for one firm to manufacture both of them. On the contrary, there must be similarities and other economies and conveniences which have persuaded these firms to manufacture both the kinds of goods instead of sticking only to one kind of them. "another circumstance which was taken into consideration by the Division Bench was that the electrical goods shop will sell not only domestic appliances falling under class 11 but also sell radio and televisions sets falling under class 9. It, therefore, came to the conclusion that there was proximity of goods of both the parties in respect of the trade channel. Similar is the case here. It, therefore, came to the conclusion that there was proximity of goods of both the parties in respect of the trade channel. Similar is the case here. It is an admitted fact that the respondent-herein was not only selling domestic appliances but was also selling the televisions manufactured by the plaintiff. Even now as per the documents produced on record by the defendants show that they are still selling televisions manufactured by Weston, Beltek and Telerad. After considering the decisions which were cited before it, the Division Bench in Jugmng s case (Supra) finally concluded as under : "we have considered the strong relevance of the nature of the trade marks in the relevant case. The class of customers are ordinary people who are not well versed in the specific information as to what is manufactured by the respondent and what is not manufactured by it. These customers go by the general impression that electrical manufacturers often manufacture both the types of goods and dealers sell both of them together. This leads to the impression which is formed by the customers by a confusion or deception taking place in their minds. We have also considered the trade channel and how it is common to both these types of goods. We have shown that the connection between the two is both at the manufacturing and at the marketing stages. Almost all the factors which are relevant for consideration under Section 1 l (a) are, therefore, present in this case. "the aforesaid circumstance is present in the present case also. The goods which are manufactured by the defendants are both electrical and non-electrical but they are domestic appliances and they are sold along side television sets. It is not unknown, and in fact it is quite common, for firms and companies manufacturing televisions sets to also manufacture other domestic appliances like heaters, iron, toasters etc. This is an example which has been given by the Division Bench and which has been quoted hereinabove. A television has now become as much a domestic appliance as a cooler. It is true that some of the goods manufactured and sold by the defendants under the name and style of choice are not electrical like sewing machine and pressure cooker, but the other goods certainly are electrical goods meant for domestic use. A television has now become as much a domestic appliance as a cooler. It is true that some of the goods manufactured and sold by the defendants under the name and style of choice are not electrical like sewing machine and pressure cooker, but the other goods certainly are electrical goods meant for domestic use. ( 9 ) IT is true that the plaintiff has been in business possibly only for three years but, that by itself, cannot be a ground for disentitling it to the relief if it was otherwise entitled to. Even according to the counsel for the defendant the plaintiff had sold, in the last three years, about 12,000 television sets the price of those would be more than Rs. 1 crore. It is further the case of the plaintiff, and it has produced documents in support thereof, that it has widely advertised its television sets in the market. Even in a period of three years, it can be safely inferred, the plaintiff has acquired a reputation in the market which is reflected in its sales. The defendant was a dealer of the plaintiff and it does not appear to be an accident that the defendant has chosen to adopt the trade name "choice" with respect to the domestic appliances after it had started selling the television sets bearing the brand name "choice. " ( 10 ) FOLLOWING the ratio of the Division Bench in Jugmug s Case (Supra ). I, therefore, issue an injunction restraining the defendants from selling the aforesaid goods except sewing machine, pressure cookers and water filters (which are all non-electrical items) under the name and style of "choice" pending disposal of the suit. The defendants are further restrained from using the logo "choice" similar to the one of the plaintiff with respect to the aforesaid three items, namely, sewing machine; water filter and pressure cookers. Any opinion expressed in this order is only tentative and will not in any way prejudice the defendants at any stage.