Judgment :- P. K. SETHURAMAN, J. Application No. 1338 of 1988 has been filed under Order XIV Rule 8 of O.S. Rules and under Or. 39 Rules 1 and 2 C.P.C. praying for an order of interim injunction restraining the respondents their agents, etc. from manufacturing selling advertising and offering for sale of tyres, tubes, flaps etc, used for vehicles with the name 'RADIALGRIP' or any other trade name which is in any way deceptively/phonetically similar to the applicant's registered trade mark "NYLOGRIP" registered under No. 419813 in class-12 pending disposal of the suit. 2. The applicant M.R.F. limited has filed the suit C.P.No. 279 of 1988 for the reliefs of permanent injunction restraining the defendants from manufacturing selling etc. for sale of tyres, tubes etc. used for vehicles with the name RADIALGRIP or any other trade name which is in any way deceptively/phonetically similar to the plaintiff's registered trade mark 'NYLOGRIP' and for rendition of accounts of the profit earned by them in the course of the trade using the name RADIALGRIP or using the get up and mark as shown in Document Nos. 5 and 6 for directions to the defendant to pay to the plaintiff the profit earned by such passing off committed by the defendant and for a direction to surrender all the printed materials, tyres letterheads, dies, blocks etc. With the tread pattern with the machines used for the purpose of manufacturing the same for destruction and for costs. 3. According to the plaintiff, the plaintiff company are mainly manufacturers of tyres for automobiles having four factories in India at Thirutottiyur, Arakonam, Goa and Kottayam and they are leading manufactures of tyres and other articles necessary in the automobile industry in our own country with a huge capital and the plaintiff specializes the manufacture of tyre for scooters in different get up an different brand names. They started manufacture of scooter tyres around 1973 and the most popular scooter tyres of the plaintiff is of the size 3.50-8 sold under the brand name NYLOGRIP having a unique appearance consisting of a distinctive tread patten and a distinctive side wall get up with a unique arrangement of legends, symbols and numbers. They started manufacture of scooter tyres around 1973 and the most popular scooter tyres of the plaintiff is of the size 3.50-8 sold under the brand name NYLOGRIP having a unique appearance consisting of a distinctive tread patten and a distinctive side wall get up with a unique arrangement of legends, symbols and numbers. They have MRF muscleman symbol enclosed in a circle and the legend NYLOGRIP embossed in a wide spaced manner with the interior of each letter bearing a pimple pattern used only by the plaintiff and a special manner of representing the tyre specifications. 4. The Nylogrip tyre have enjoyed tremendous popularity and sales have been shooting up year by year. They have built up goodwill and reputation by massive advertising campaigns highlighting the distinctive features of the tyres. 5. The plaintiff applied for registration of the word mark NYLOGRIP before the Registrar of Trade Marks under the Trade and Merchandise Marks Act, 1958 in part A of the register and in class 12 for applying in trade to their articles of manufacture, namely "tyres, inner tubes and accessories thereof for land vehicles included in Class-12" * After satisfying that the plaintiff's mark NYLOGRIP was distinctive the Registrar accepted the plaintiff's application and entered the mark on the register and has issued the certificate for Legal use declaring that the plaintiff is the proprietor of the trademark NYLOGRIP with effect from March 28, 1984. 6. Some other companies are also manufacturing scooter tyres of the size 3.50-8. Although the tarrs manufactured by all those concerns are having the same circular shape, each manufacturer proclaims his individual identity mainly having distinctly different and easily distinguishable patterns of tread on the running surface of the tyre and also by arranging the get up and appearance of the sidewall of the tyre (consisting of brand names, symbols, tyre specifications and descriptions) in a manner different from other manufacturers to avoid confusion. The device and the pattern of the tread is always displayed most prominently in all advertisements of tyres in dailies, journals etc. The pattern of the tread on the tyres is commercially the identification mark, as it were, of the manufacturer of the tyre. The pictorial pattern of the tread with the manufacture are associated by the retailers as well as consumers. The pattern of the tread on the tyres is commercially the identification mark, as it were, of the manufacturer of the tyre. The pictorial pattern of the tread with the manufacture are associated by the retailers as well as consumers. In the tyre trade the pattern of the tread of the tyre is accepted as the distinctive hall-mark of the manufacturers. 7. The tread pattern is particularly important in India where the rural population is considerable and the percentage of illiteracy is high. Beyond the urban limits even among the literate the education is generally imparted in the mother tongue and as a result a large number of consumers are unable to read English. In such circumstances the distinctive trade patterns assume great significance in differentiating between different manufacturers and the quality of their tyres. 8. The defendant is a recent entrant into the field of scooter tyres, is selling their tyres under the trade name of RADIALGRIP which is embossed on the side wall of the tyre. On a mere scrutiny of the plaintiff's and defendant's tyres the following features are highlighted : (i) The defendant's use of the words RADIALGRIP is phonetically and structurally deceptively similar to plaintiff's mark "NYLOGRIP'. (ii) The word Radial grip is written in letters similar to the fashion in which the NYLOGRIP is embossed on the tyre. (iii) All the other details of arrangement and get up in the defendant's tyre are displayed in a similar manner as that of the plaintiff. (iv) In particular the pictorial pattern of the tread in the defendant's tyre is deliberately calculated to deceive an unwary purchaser. (v) The tread pattern of the defendant's tyre is obviously and deceptively similar to the tread pattern of the plaintiff's tyre. 9. The defendant's use of the word mark "RADIALGRIP" and the pattern of the display of the same with other details alongwith deceptive imitation of the pattern of the tread of plaintiff's tyres amounts to infringement of plaintiff's trademark NYLOGRIP and passing off with respect to the pictorial pattern of the tread of the tyre and other visible features of the appearance and get up. The defendant by such copying is making a statement that the defendant's tyres are manufactured by the plaintiff. The defendant's tyres are available All Over India including the City of Madras and plaintiff bought a tyre on 30-1-1988 and inferior in quality. The defendant by such copying is making a statement that the defendant's tyres are manufactured by the plaintiff. The defendant's tyres are available All Over India including the City of Madras and plaintiff bought a tyre on 30-1-1988 and inferior in quality. The defendant is advertising on hoardings widely in Madras. The defendant is gaining illegal profits in the course of the trade and hence the suit. 10. Alongwith the plaint Application No. 1338 of 1988 has been filed for above-mentioned reliefs and the other applications are also for the following reliefs. Application No. 1339/88 has been filed under Or. XIV Rule 8 of O.S. Rules for granting interim injunction restraining the respondent from passing of their goods i.e. tyres with the name RADIALGRIP etc. Interim injunction was granted on 23.3.1988 by learned Justice Bhaskaran. 11. Application Nos. 2035 and 2036 of 1988 have been filed by the respondent/defendant seeking to vacate the ad-interim injunction granted in Application Nos. 1338 and 1339/88. The Secretary of the applicant/plaintiff has filed an affidavit in support of Application Nos. 1338 and 1339/88. Narrating the facts about the manufacture of scooter tyres in the brand name" * NYLOGRIP' the applicant has contended that the respondent/defendant recently has started manufacturing and marketing scooter tyres under the name RADIALGRIP and with a deceptively similar tread pattern and appearance to the respondent's tyres. RADIALGRIP being deceptively similar, their using the name RADIALGRIP is also an infringement of the applicant's registered trade mark NYLOGRIP registered by them. Hence, they have filed two applications, one for interim injunction and another for passing off. 12. The respondent/defendant have filed counter-affidavit through the Marketing Manager contending that the defendant is one of the leading manufacturers of India of various kinds of tyres for vehicles and they are widely reputed in the manufacture and sale of tyres all over the country under the trademark METRO They have commenced manufacturing and marketing tyres bearing the mark METRO RADIALGRIP from November 1987. The plaintiff has come forward with the suit not really on the basis of any "Tread pattern but because of the realization that the defendant is a source of fair competition to the plaintiff. 13. The plaintiff has come forward with the suit not really on the basis of any "Tread pattern but because of the realization that the defendant is a source of fair competition to the plaintiff. 13. Denying several of the allegations made in the affidavit filed on behalf of the plaintiff, it has been contended that no deception could be said to be caused by reason of the tread pattern of tyre manufacturers and tyres are not bought merely by looking at the tread pattern. 14. The defendant's mark METRO RADIAL GRIP is totally different from the mark MRF NYLOGRIP and the word is a purely descriptive expression which is not only common to the trade but also open to the trade for use. The word GRIP not only occurs in advertisements of various manufacturers tyres to indicate the basic function of a tyre to grip the road, but is also found in the trademark of several tyre manufacturers and such marks find a place in the records of the Trade Marks Registry. 15. The tyre is not purchased by reference to a tread pattern but with reference to the name of the manufacturer and the brand. The defendant's tyres are very clearly and prominently indicate the brand thereon METRO RADIALGRIP and the plaintiff's tyre also contains very prominently the expression MRF NYLOGRIP in addition to their symbol consisting of a muscleman lifting a tyre. There are several "GRIP" marks which are on record in the Trade Marks Registry and which are prior to the plaintiff's registration and subsequent to the plaintiff' registration also there are "GRIP" marks. 16. Various features alleged. To be depicted on the plaintiff's tyre would themselves clearly serve to distinguish the plaintiff's tyres from the defendant's tyres. The plaintiff's tyres have the picture of a muscleman lifting a tyre. Their tyres also prominently contain the letters MRF and the word NYLOGRIP. The defendant does not have any such symbol of a muscleman much less a muscleman lifting a tyre. The defendant's tyre has the words METOR RADIALGRIP prominently displayed. The tyres are not purchased in shops by looking at photographs of tyres but by a thorough inspection and scrutiny of the tyres. The defendant does not have any such symbol of a muscleman much less a muscleman lifting a tyre. The defendant's tyre has the words METOR RADIALGRIP prominently displayed. The tyres are not purchased in shops by looking at photographs of tyres but by a thorough inspection and scrutiny of the tyres. The fact that the Registrar has registered the Trade mark NYLOGRIP of the plaintiff when there were prior registration of other manufacturers of various grips marks, makes clear that the Registrar considered the element grip to be an element which is open to all to use. The Registrar did not consider the plaintiff's trade mark NYLOGRIP to conflict with the earlier registrations of "GRIP" marks of other manufacturers. There can be no conflict between NYLOGRIP AND RADIALGRIP. Other distinguishing features present on the defendant's tyres are also factors to be taken into consideration. 17. The tread pattern is of a purely functional and utilitarian value intended for furnishing an adequate grip on the road and stability to the vehicle during movement. The tread pattern which are novel can be registered under the Designs Act, 1911 and the Patents Act, 1970. The plaintiff has no such registration. 18. The defendant is selling its METOR RADIALGRIP tyres from November, 1987 several months prior to the filing of the suit openly and extensively and they are available all over the country including the city of Madras. The allegation that the defendant's product is lesser in price and in quality is misleading and false and whatever be the price or the quality is not a matter which the plaintiff can canvass in a suit of this nature and the plaintiff is not entitled to any of the reliefs prayed for and the suit itself is liable to be dismissed in limine and as such the plaintiff has not made out any case for the grant of interim injunction against the defendant and the balance of convenience is entirely with the dependant. Hence, it has been prayed that the applications have to be dismissed with costs. C.S. No. 311/88 19. This is a suit filed praying for a permanent injunction restraining the defendants by themselves, their agents, servants, etc. Hence, it has been prayed that the applications have to be dismissed with costs. C.S. No. 311/88 19. This is a suit filed praying for a permanent injunction restraining the defendants by themselves, their agents, servants, etc. from passing of their goods by offering for sale, advertisement or otherwise auto-rickshaw tyres having the prominent features of tread pattern exactly similar to the tread pattern of auto-rickshaw tyres of the applicant/plaintiff and for rendition of accounts of the profit earned by the defendants in the course of trade by using the get up, appearance and tread pattern similar to that of the plaintiff and for surrendering all tyres, moulds, dies, blocks, printed materials or other materials having the tread pattern as depicted in the plaint alongwith the machines used for manufacturing for the purpose of destruction and for costs. 20. With the plaint the plaintiff has filed Application No. 1438 of 1988 praying for ad-interim injunction restraining the defendant/respondent by themselves or agents etc. by offering for sale advertisement or otherwise of their goods, auto-rickshaw tyres having similar tread pattern as that of the applicant/plaintiff shown in the plaint as Document Nos. 3 and 4. In that application this Court ordered interim injunction and the respondent/defendant has filed Application No. 2100 of 1988 for vacating the order of ad-interim injunction granted in Application No. 1438/88 and for suspending ad-interim injunction respectively. 21. According to the applicant/plaintiff, they are manufacturing tyres for automobiles in their four factories in the country and they are leading manufacturers of tyres and other articles in the country and they are manufacturing tyres for all types of automobiles such as buses, cars, tractors, lorries, scooters, auto-rickshaws etc. and in March, 1976 they entrusted to their department of Research and Development, the task of manufacturing a set of auto-rickshaw tyres and after development in the year 1979 they perfected the manufacture of auto-rickshaw tyres of the description 4 00-8 Atomiler 6 PR Nylon. According to the applicant, each company has adopted a tyre display and tread pattern of its own unique and distinguishable from the rest, except the tyre originating from the defendant. The defendant has only recently launched auto-rickshaw tyres in the market having prominent features of tread pattern exactly similar to the pattern of the plaintiff's tyre. 22. According to the applicant, each company has adopted a tyre display and tread pattern of its own unique and distinguishable from the rest, except the tyre originating from the defendant. The defendant has only recently launched auto-rickshaw tyres in the market having prominent features of tread pattern exactly similar to the pattern of the plaintiff's tyre. 22. The plaintiff's tyre are widely sold all over India by virtue of the excellent quality and performance of the tyre having built up a tremendous reputation and goodwill among purchasers of autorickshaw tyres and the sale of the plaintiff's tyres has been rising rapidly over the years and their tyres have gained wide consumer acceptance and popularity. The tread pattern has become the identifying feature for the customers. 23. In India especially in towns and villages the majority of the autorickshaw drivers and the rest of the market are not familiar with the English language and as a consequence, the tyres of different manufacturers are distinguished and differentiated by the prominent features of the display, get up and appearance of the tyres such as the tread pattern of the tyres . As all tyres are black and circular, the prominent distinguishing features at first glance and general impression is the tread pattern and other features of arrangement. The defendant in the tyres manufactured has copied the prominent features of the tyres of the plaintiff's tread pattern. The defendant is passing off their goods by copying such prominent features of the plaintiff's tyres and is such cannot be explained away as an unfortunate coincidence or an honest mistake. The plaintiff has learnt that the defendant has imitated the products of other tyre manufacturer like CEAT to make illegal gain. The defendant's tyres are available All Over India including the city of Madras and the plaintiff has purchased a tyre for proof on 16.3.88 from Raja Tyres and Spares, General Patters Road, Madras, who are selling tyres on a commercial scale. The said tyres sold for Rs. 290/- is bearing No. 07332 CR as indicated in the voucher. The defendant's product is lesser in price and inferior in quality. Hence the plaintiff has filed the suit. 24. In support of the application for ad-interim injunction, the Secretary of the plaintiff company has filed the affidavit making allegations as made in the plaint and has prayed for ad-interim injunction as stated above. 25. The defendant's product is lesser in price and inferior in quality. Hence the plaintiff has filed the suit. 24. In support of the application for ad-interim injunction, the Secretary of the plaintiff company has filed the affidavit making allegations as made in the plaint and has prayed for ad-interim injunction as stated above. 25. In support of Application Nos. 2100 and 2427 of 1988 filed on behalf of the respondent/defendant for vacating the interim injunction and for suspending the interim injunction the Marketing Manager of the respondent/defendant has filed counter affidavit contending that the suit filed by the plaintiff describing the defendant as Private Limited company is wrong and their company is public limited company and their company was incorporated in the year 1974 and the defendant company is one of the leading manufacturers in India of various kinds of tyres for the vehicles. Further, according to the counter affidavit, all tyres have a tread on which the tyre rests in contact with the ground when the vehicle is stationary and when the vehicle is moving. The tread of a tyre affords the necessary grip between the tyre and the ground during movement of the vehicle, to keep the vehicle substantially stable during movement. Every tread of a tyre has a plurality of ribs separated by grooves. These ribs and grooves act in conjunction to provide the necessary road gripping action. The body of the tyre beneath the tread is normally called the "carcass". The ribs and grooves together with the carcass are formed in moulds during manufacture. 26. The tread is an essential and integral part of the tyre itself performing purely a functional and utilitarian role. The tread is not something external to the tyre but is an indivisible part of it, unlike a wrapper, a label or container used for packing an article. The treads come in various "patterns" resulting from the appearance of the ribs and the grooves. In as much as treads of tyres perform a purely functional and utilitarian role, manufacturers including manufacturers in India have adopted treads with patterns which appear substantially the same when viewed by the eye. 27. The tread patterns of various manufacturers are also found in the plaintiff's tyres. The defendant's tread pattern is not anything copied from the plaintiff's tread pattern and it is different from that of the plaintiff's tread pattern. 27. The tread patterns of various manufacturers are also found in the plaintiff's tyres. The defendant's tread pattern is not anything copied from the plaintiff's tread pattern and it is different from that of the plaintiff's tread pattern. However, all such tread patterns are not by any means exclusive to any one manufacturer because they are commonly adopted by different manufacturers simply for the purpose of affording better road gripping action. The seeming similarities between tread patterns of different manufacturers result from the common objective of all such manufacturers to provide treads which perform specific functions in keeping the vehicle substantially stable during movement. 28. The tyres of various manufacturers are distinguished by their names or by brands appearing on the respective tyres. The defendant's brand METRO is prominently displayed and METRO tyres Limited is about to be registered as trademark for tyres in class 12 under the Trade and Merchandise Marks Act, 1958. The plaintiff's trademark is MRF. There are other manufacturers, for example Goodyear, Ceat, Vikrant, JK among others. Besides on the defendant's tyres, the words HEAVY DUTY appear, while on the plaintiff's tyres the word ATOMILER appears in addition to the respective marks METRO and MRF. Thus, the words METRO HEAVY DUTY are found on the defendant's tyres, while the words MRF AUTOMILER are found on the plaintiff's tyres prominently. Further on the plaintiff's tyres the muscleman symbol appears, while on the defendant's tyres no such symbol appears. 29. The purchaser of tyres does not come into a shop and purchase a tyre merely by looking at its tread pattern while turning a blind eye to the trade mark of the manufacturer. The purchasers ask for a tyre by name and they would Enquire about the price size and other specifications, such as, the ply rating which indicates the strength and durability of the tyre. The purchasers do not merely look at the treads of tyres stocked in the shop and buy a tyre of a particular manufacturer. The Applicant/plaintiff has misled by making it appear as if the applicant/plaintiff has made out a case for "passing off". It is impossible for the tyre of one manufacturer having a specific tread pattern to be passed off as or for the tyre of an other manufacturer having the same or substantially the same tread pattern solely by reason of an alleged similarity of tread patterns. It is impossible for the tyre of one manufacturer having a specific tread pattern to be passed off as or for the tyre of an other manufacturer having the same or substantially the same tread pattern solely by reason of an alleged similarity of tread patterns. The applicant's case is devoid of any basis or any substance. The plaintiff has not obtained any registration for the "novel" tread pattern under the Designs Act, 1911. The tread patterns are registered under the Designs Act, 1911 if they are new or novel. 30. The plaintiff has not also secured any patent for the allegedly novel or useful tread pattern as an "invention". The tread patterns which are new and useful are patented under the Patents Act, 1970 31. The suit is merely a desperate attempt by the plaintiff to stifle fair competition by harassment. 32. The defendant commenced manufacturing and marketing its tyres bearing the tread patterns mentioned in the suit and the plaintiff not having secured any protection under the statute cannot now attempt to stifle the defendant. The allegations made in the plaint as well as in the application about "passing off" and "copying" are unwarranted and the allegation made by the plaintiff that after considerable effort and research they lunched a new range of auto-rickshaw tyre is false. The suit is a colourable device adopted by the plaintiff to claim a "monopoly" for its tread pattern. 33. The applicant/plaintiff's tyres are sold under the name AUTOMILER and the word AUTOMILER prominently appears on the plaintiff's tyres along with the letters MRF which are also prominent and so it is inconceivable that any one would accept the defendant's tyres bearing its trade mark METRO and the words HEAVY DUTY very prominently thereon. The plaintiff's allegation regarding consumers not being highly educated or familiar with English language are clearly a gloss on stark realities to buttress its unsustainable case. The case of the plaintiff is an imaginary situation and there is no basis whatsoever for the allegations of the applicant/plaintiff excepting being self serving statements. Several allegations made by the applicant/plaintiff are false. 34. The case of the plaintiff is an imaginary situation and there is no basis whatsoever for the allegations of the applicant/plaintiff excepting being self serving statements. Several allegations made by the applicant/plaintiff are false. 34. The allegation that the tyres of the defendant are identical or deceptively similar in 'appearance' and 'tread display' to those of the plaintiff are fictitious and baseless, The allegations regarding loss by the plaintiff are false and there is no loss or injury to the plaintiff and it is the defendant who has suffered loss and injury and there is no slightest basis for the allegation of passing off. If really the allegations of research and development are true, the applicant/plaintiff could have applied for statutory protection to the so-called novel tread pattern. The allegation that the tread pattern has become "Identifying features" for customers is false. The customers identified the tyres by the brand/manufacturer's names appearing prominently and moulded on tyres. Vehicle owners are quite well aware of the brands of tyres available in the market and they look for a tyre by the brand and by various other important factors such as price; quality, size and specifications. The tyres are not bought by tread patterns ignoring the brand other aspects. 35. The plaintiff has no proprietary right in tread pattern under the common law and tread patterns have something or the other in common. The allegation about the defendant's product being lesser in price, and inferior in quality is misleading and false. The Applicant/plaintiff is not entitled to any relief claimed and the suit itself is liable to be dismissed. The balance of convenience is entirely with the respondent/defendant and the applicant/plaintiff has not made out any case. Hence, it has been prayed that the application has to be dismissed. 36. The respondent/defendant has filed two Application Nos. 2100 and 2417 of 1988 for vacating the ad-interim injunction granted in A. No. 1438 of 1988 and for suspending the ad-interim injunction respectively. The allegations made in the counter-affidavit are the basis of these two applications. C.S. NO. 319 OF 1988 37. Application No. 1454 of 1988 is by the plaintiff paying for an interim injunction restraining the respondent, his agents, dealers, etc. from passing off by offering for sale, advertisement or otherwise their tractor tyres (front) with the appearance and tread pattern similar to that of the tractor tyres manufactured by the applicant/plaintiff. C.S. NO. 319 OF 1988 37. Application No. 1454 of 1988 is by the plaintiff paying for an interim injunction restraining the respondent, his agents, dealers, etc. from passing off by offering for sale, advertisement or otherwise their tractor tyres (front) with the appearance and tread pattern similar to that of the tractor tyres manufactured by the applicant/plaintiff. This application has been filed alongwith the suit. 38. The plaintiff has filed the suit itself praying for any permanent injunction restraining the defendant from passing off by offer for sale, sale, advertisement or otherwise their goods, tractor tyres manufactured by them with the appearance and tread pattern similar to the tractor tyres manufactured by the plaintiff, for rendering accounts of the profit earned by them in selling such tractor tyre and for a direction to surrender to the plaintiff all tyres, mould dies, blocks, printed materials or other materials containing or having the tread pattern and the machines used for manufacturing such tractors tyres for the purpose of destruction and for costs. 39. Among other things, the plaintiff has come forward contending that the plaintiff entrusted to their Research and development department of his plaintiff in January, 1977 the designing and producing the front tyres of the tractor and after serious development activities production of such front tyres for the tractors commencing during December, 1982 and they were commercially launched in the year 1984. The prominent feature of tractor tyres as the cutting edge in the tread pattern which comes into contract with the earth. Tractors are used mainly for agricultural purposes and the efficiency of these operations depend on the tread pattern. The manufacturers of such tractor tyres adopted distinctive pattern to distinguish their products from other. The defendant's tractor tyres have been noticed in the market recently and it has been found that the have identically copied the main features and tread pattern of the tractor tyres manufactured by the plaintiff with respect to the front tyres. The purchasers of tractor tyres being mostly farmers, not familiar with English Language are guided by the tread pattern of the tyres and by virtue of the reliability and quality of the plaintiff's tyres they are high and constant demand and due to extensive advertising and sales promotion. The purchasers of tractor tyres being mostly farmers, not familiar with English Language are guided by the tread pattern of the tyres and by virtue of the reliability and quality of the plaintiff's tyres they are high and constant demand and due to extensive advertising and sales promotion. As the plaintiff's products have acquired very wide acceptance all over India, the defendant has choosen to pass off their goods as the goods of the plaintiff by copying the prominent features of the plaintiff's tyres, mainly the tread pattern. The defendant's product is lesser in price and inferior in quality, whereas the plaintiff's tyres cost more and the plaintiff has suffer damages. In such circumstances, the plaintiff has filed the suit and the application for interim injunction. 40. In the injunction application ad-interim injunction had been granted. 41. The respondent/defendant through the Marketing Manager (South) has filed the counter contending that the description of the defendant as Metro tyres is not correct and Metro Tyres is Public Limited company and the defendant company is a leading company manufacturing various kinds of tyres for vehicles and they are manufacturing and selling tyres under the Trade Mark METRO. After narrating the presence of tread in tyres and the purpose and utility of treads, it has been contended that the tread patterns of various manufacturers are also found in the plaintiff's tyre and the defendant has not copied the plaintiff's tread pattern and their tread is different from that of the plaintiff's tread pattern. The tread patterns are not by any means exclusive to any one manufacturer because they are commonly adopted by different manufacturers for the purpose of affording better road gripping action. Seeming similarities between tread patterns of different manufacturers result from the common objective of all such manufacturers to provide treads which perform specific functions is keeping the vehicle stable during movement. 42. The tyres of various manufacturers are distinguished by their names or by brands (trade marks) appearing on the respective tyres and the defendant's brand name METRO prominently appears on their tyres and the defendant's trading style METRO Tyres Limited is to be registered as a trade mark for tyres of the defendant on all India basis in Class 12 under the Trade and Merchandise Marks Act, 1958. The plaintiff's trade mark is MRF and there are trade marks of other manufacturers like GOOD YEAR; DUNLOP, CEAT, VIKRANT. The plaintiff's trade mark is MRF and there are trade marks of other manufacturers like GOOD YEAR; DUNLOP, CEAT, VIKRANT. JK and others. On the defendant's tyres. The words JAI KISAN appear, while on the plaintiff's tyre the word SHAKTHI appears in addition to the marks METRO and MRF. The purchaser of tyres do not purchase tyres merely by looking at its tread pattern turning a blind eye to the tread mark of the manufacturer. 43. The applicant/plaintiff has misled the Court as if a case for passing off has been made when no such case exists. It is not possible for the tyre of one manufacturer having a specific tread pattern to be passed off as/or for the tyre of another manufacturer having the same or substantially the same tread pattern. Solely by reason of alleged similarity of tread pattern. The brand names are prominently moulded on the tyres themselves and the brands are very well known to purchasers. 44. The plaintiff has not obtained any registration for its allegedly 'Novel' tread pattern under the Designs Act, 1911 and tread patterns are registered under the Designs Act if they are new or novel. The plaintiff's tread pattern is nothing new. The plaintiff has not also secured any patent for its novel or useful tread pattern as an "Invention" and the tread patterns which are new and useful are patented under the Patents Act. The plaintiff who has not obtained registration under the Designs Act or under the Patents Act has come up with the baseless suit. Not having any protection under the specialised statutes the plaintiff cannot attempt to get some rights under the guise of a common law action for "passing off". 45. The respondent/ defendant commenced manufacturing and marketing tyres bearing tread patterns concerned in the suit from June, 1987. 46. In the counter-affidavit other allegations made in the affidavit filed alongwith the application have been specifically denied and it has been contended that in the plaintiff's tyres sold under the name of SHAKTHI the words SHAKTHI prominently appears and the letters MRF also appear prominently. It is unbelievable that anyone would accept the defendant's tyres bearing the tread mark METRO and the words JAI KISAN for the plaintiff's tyres bearing letters MRF and SHAKTHI. 47. It is unbelievable that anyone would accept the defendant's tyres bearing the tread mark METRO and the words JAI KISAN for the plaintiff's tyres bearing letters MRF and SHAKTHI. 47. The allegation regarding consumers being not highly educated and not familiar with English language have been denied and it has been contended that there is no basis or support for such allegations and they are only self serving statements. The allegations that tyres of the defendant are identical or deceptively similar are fictitious or baseless. There is a clear and basic awareness on the part of the purchasers to prefer a manufacturer more than any tread pattern and the purchasers checked the brand name of the manufacturer and tyres are not purchased by merely looking at the tread pattern ignoring the brand. 48. There is not loss or injury to the applicant/plaintiff and the allegation of copying is totally unwarranted. 49. The allegations in the plaint and the application about research and development are made without any basis and those allegations are afterthought. The farmers purchasing tractors are affluent and such persons are not unfamiliar with English language and such persons are practical enough to ascertain the brand name and the contra allegations by the applicant are not correct. Variation in price is not a matter which could be considered in a suit of this nature and on the basis of the allegations made in the plaint and the application the applicant/plaintiff is not entitled to any order of injunction since the suit itself is liable to be dismissed as not maintainable. 50. The respondent/defendant has filed two Application No 2035 and 2416 of 1988 for vacating the ad-interim injunction granted in Application No. 1454 of 1988 and for suspending the interim injunction respectively. The allegations made in the counter affidavit are the basis of these two applications. C.S. No. 372 of 1988 51. Application No. 1647 of 1988 in C.S. No. 372/88 has been filed by the applicant plaintiff praying for an interim injunction restraining the respondent, their servants, agents, etc. The allegations made in the counter affidavit are the basis of these two applications. C.S. No. 372 of 1988 51. Application No. 1647 of 1988 in C.S. No. 372/88 has been filed by the applicant plaintiff praying for an interim injunction restraining the respondent, their servants, agents, etc. from passing off by offer is for sale, advertisement or otherwise their goods I.e. tyres with the tread pattern, appearance and get up like jeep tyre manufactured by the applicant/plaintiff bearing brand name ROVER or RANGE ROVER or any other name phonetically or deceptively similar to the applicant/plaintiff's trade mark/brand name ROVER for the tyres manufactured and sold for the vehicle Jeep. 52. The application has been filed along with the plaint the C.S. No. 372 of 1988 and in the suit the plaintiff has prayed for permanent injunction restraining the respondent/defendant from manufacturing Jeep tyres with the tread pattern, appearance and get up similar to that of the plaintiff's Jeep tyres using their trade mark/brand name ROVER or RANGE ROVER or in any other name which is in any way visually or phonetically identical or deceptively similar to the plaintiff's trade mark and brand name ROVER for the tyres manufactured and sold by the defendant and for rendition of accounts of the profit earned by the defendant in the course of the trade using the name RANGE ROVER or using the appearance and get up like that of the plaintiff in the manufacture of Jeep tyres and passing off their goods and for surrendering the printed materials, tyres, manufactured goods, moulds and other advertisement materials along with machines used for the manufacture for destruction and for costs. 53. According to the applicant/plaintiff, they are leading manufactures of tyres of different types of vehicles like buses, cars, lorries, scooters, jeeps, tractors etc. and the present suit is with regard to Jeep tyres and according to the plaint, they evolved Jeep tyres after considerable research and development and their Jeep tyres bear the brand name ROVER. The side wall of the tyre contains the legend ROVER (brand name) 600-16 (dimension) 8 ply Rating (strength), the number assigned to the individual tyre alongwith the month of manufacture, the word NYLON, plaintiff's logo of the musclemen inside a circle and lastly the plaintiff's name MRF. 54. The side wall of the tyre contains the legend ROVER (brand name) 600-16 (dimension) 8 ply Rating (strength), the number assigned to the individual tyre alongwith the month of manufacture, the word NYLON, plaintiff's logo of the musclemen inside a circle and lastly the plaintiff's name MRF. 54. There are other leading companies manufacturing such Jeep tyres of the size 600-16 like Dunlop India Limited, Modi Rubber Ltd. Ceat Tyres of India. The tyres manufactured by different manufacturers are with different patterns of tread and the manufacturers created distinctly different and easily distinguishable tread patterns and side wall appearance and the pattern of the tread of the tyre is accepted as the distinctive hallmark of each manufacturer. Such tread patterns is particularly important in India with Predominantly the rule population with high percentage of illiteracy. 55. The Jeep tyres manufactured by the defendant bearing the brand name RANGE ROVER deceptively similar to that of the plaintiff. The tread pattern of the defendant's jeep tyre is identical to that of the plaintiff's jeep tyre and they appear as if both have been cast in the same mould. Then brand name of the defendant "RANGE ROVER" is calculated to mislead the public into believing that its origin is the same as that of ROVER namely the plaintiff. The legends, numerals, letters etc. embossed on the defendant's product is exactly the same in which the plaintiff's embossed its legend and the defendant has reproduced the miniscule pimple dots in the lettering of NYLON, METRO, RANGE ROVER as found in the plaintiff's NYLON, MRF, ROVER. The concentric circle around the legends have been faithfully reproduced in the defendant's tyres with respect to the number of the circles closeness of the circles and the depth of the furrow of the circle. 56. Such exercise of the defendant in copying and passing off the plaintiff's Jeep tyres appears to be of recent origin, since the Jeep tyres shown in the advertisement issued by the defendant has a totally different tread pattern. So the defendant is encroaching on the market of the plaintiff to pass off their goods as the goods of the plaintiff. The buyers of tyres are of two kinds. Those who buy directly from the plaintiff's factory and those who buy from dealers, stockiest, agents and retailers. So the defendant is encroaching on the market of the plaintiff to pass off their goods as the goods of the plaintiff. The buyers of tyres are of two kinds. Those who buy directly from the plaintiff's factory and those who buy from dealers, stockiest, agents and retailers. Latter type of buyers are opt to become victims of passing off and large percentage of the dealers will have in their shops tyres of all the manufacturers in India and those who handle the tyres in the shops dealing with customers are guided for identification by the t read patterns, as the tread pattern covers the larger portion of the visible area of the tyre. Similarity in the tread pattern in the tyres of the plaintiff and defendant will inevitably lead to confusion in identity to the disadvantage of the plaintiff. Apart from such errors a dishonest dealer will be tempted to pass off defendant's tyre for the plaintiff's tyre with a view to gain a financial advantage or on account of plaintiff's tyre being more expensive than defendant's tyre. 57. Though the defendant's name is embossed on the tyre and literate buyer may be able to distinguish one tyre from the other, the majority of the buyers in the market will be prevailed upon to buy defendant's tyres for plaintiff's tyres on account of the tyres having the same tread pattern brand name and appearance as that of the plaintiff's tyres. Similarity of the tread pattern appearance and brand name automatically leads to a presumption of common origin. The defendant's tyres though similar to that of the plaintiff, are of inferior quality and of inferior workmanship and are cheaper. The retailers who value quick money by defendant's tyre at huge margins are motivated to canvass for the sales of defendant's inferior products. 58. The defendant's name "Metro" dealers are given the scope to propagate in the market that the defendant tyres are from Metro Rubber Factory in brief MRF, the name of the plaintiff. The copying of the tread pattern, appearance and brand name of the plaintiff's tyre by the defendant provides ample opportunity to dishonest traders to deceive the unwary public by advancing the above propositions. The copying of the tread pattern, appearance and brand name of the plaintiff's tyre by the defendant provides ample opportunity to dishonest traders to deceive the unwary public by advancing the above propositions. The sameness of the tread pattern between the plaintiff's pattern and the defendant's is heard to cause confusion even among the sales staff at each godown/shop while dealing with customers, apart from the temptation for the sales staff to pass off the defendant's tyres to a purchaser intending to buy the plaintiff's tyres. Hence the plaintiff has come forward with the suit. 59. Application Nos. 2032 and 2415 of 1989 have been filed by the respondent/defendant for vacating the interim injunction and for suspending the interim injunction respectively which had been granted in Application No. 1647 of 1988. The allegations made in the counter affidavit are the basis of the 2 applications. 60. The respondent/defendant has filed counter through the Marketing Manager (South) of Metro Tyres Limited, contending that the defendant has been manufacturing and marketing Jeep tyres bearing the trade mark METRO RANGEROVER and there is no deception caused by reason of the tread appearance of the respondent's tyres since they are not similar. The defendant's mark is METRO RANGEROVER totally different from the mark MRF ROVER. The defendant adopted the mark METRO RANGE OVER for its Jeep tyres because Jeep is an all terrain vehicle suited to rough terrain or country side. A "range" is a "stretch of open country". To "rove" is to "wander" or "ramble". The composite mark METRO RANGE ROVER indicates a METOR tyre built for roving on the range suggesting reggedness. The expression MRF ROVER with the muscleman symbol is totally different an distinguishable from the expression METOR RANGE ROVER. The plaintiff who has no registration for ROVER and any event, cannot equate the expression METRO RANGE OVER with ROVER. 61. Denying various other allegations made in the affidavit of the applicant is has been contended that such allegations have been made without any basis and it has been further contended that the applicant/plaintiff does not hold a registration either under the Designs Act or under the Patents Act. 62. Further, it has been contended that the tread pattern is never the distinguishing feature of a tyre and only the brands METRO, DUNLOP etc. are the identifying means. 62. Further, it has been contended that the tread pattern is never the distinguishing feature of a tyre and only the brands METRO, DUNLOP etc. are the identifying means. A tyre is not purchased by a "get up" or appearance but by several other considerations. A tread pattern is no exclusive monopoly of any one manufacturer including to plaintiff and the tread pattern can however be covered by a registration under the Designs Act. Admittedly, the plaintiff has such registration. 63. The applicant/plaintiff is not entitled to any of the reliefs and hence the application and the suit are liable to be dismissed. 64. Application Nos. 2032 and 2415 of 1988 have been filed by the respondent for vacating the interim injunction and for suspending the interim injunction respectively which had been granted in Application No. 1647 of 1988. The allegations made in the counter-affidavit are the basis of these two application. 65. The applicant/plaintiff has filed common reply affidavit with regard to all these applications submitting that their main common allegation in all the four cases against the respondent/defendant is that the defendant has copied in to the tread pattern/device/get-up covering most of the visible portion of the tyre of the 4 different types of tyres manufactured by the plaintiff and with regard to the scooter tyre (C.S. No. 279/88) the defendant has adopted brand name RADIAL GRIP against the plaintiff's brand name NYLOGRIP and with regard to Jeep tyre (C.S. No. 372/88) as against the plaintiff's ROVER the defendant has chosen to adopt deceptively similar brand name RANGE ROVER. 66. In the weekly bulletin called "Tyre Bulletin" dated 16th March, 1988 which had been produced by the plaintiff (as Document No. 10) displaying the tread pattern of the defendant's tyre meant for scooter, auto-rickshaw and jeep the tread patterns in those advertisements are different from the tread patterns now being used by the defendant in imitation of the plaintiff's tread patterns. It appears that the switch over by the defendant from its original tread pattern to the present imitative tread patterns appear to have been recent origin. 67. The copying by the defendant is deliberate. It appears that the switch over by the defendant from its original tread pattern to the present imitative tread patterns appear to have been recent origin. 67. The copying by the defendant is deliberate. The distinguishing features of the plaintiff's product can be identified from the products of other manufacturers and the imitation of the essential features of the plaintiff's tyres by the defendant would cause confusion on the market and will enable the dishonest dealers and retailers to pass off the goods of the defendant as those of the plaintiff. In number of shops where tyres of different manufacturers are sold , similarity of the tread pattern will easily mislead the shop assistant to give the customers one for other even unintentionally. The whole object of the defendant in copying the above tread pattern of the plaintiff is to achieve the said result. Though the name of the manufacturer and the brand names are found in the tyres the tread pattern covers greater part of the visible portion of the tyre and the tread pattern would strike the end catch the attention first. Even according to the defendant tread patterns are solely functional and utilitarian and while so, the consumer would expect that finalisation of such an important part of the tyre would be arrived at after considerable and thorough planning and research. Similarity in tread pattern can easily lead one to believe that both the companies are under one management. 68. With respect to Nylogrip (Scooter tyres) it has contended that the grip is a part of a large number of pre-existing trade marks for tyres as such the work is public juris and it has been argued that any tyre manufacturer can help himself to the word "grip". The word "grip" is used by the different manufacturers with different prefix or suffix. As such, such mark is distinctive and different from other. The word "grip" is a part of a large number of registered mark and it does not make the word grip either public juris nor res-nulline available for all. So long as the word Grip is an essential part of the registered mark, the owner is entitled for exclusive protection as against an unregistered new entrant. 69. The word "grip" is a part of a large number of registered mark and it does not make the word grip either public juris nor res-nulline available for all. So long as the word Grip is an essential part of the registered mark, the owner is entitled for exclusive protection as against an unregistered new entrant. 69. The defendant continues to manufacture and sell four different types of tyres with their original tread pattern as displayed in page 1 of the tyre Bulletin published in Bombay alongwith their recent tyres with imitative tread pattern. The defendant is not likely to suffer stoppage of their production and sale of their tyres which are similar to that of the plaintiff's tyres by the order of interim injunction. Hence, there is no question of defendant suffering damages. Hence, it has been prayed that the order of interim injunction already granted has to be made absolute till the disposal of the suit. 70. The point that arises in all these applications is as to whether the applicant/ plaintiff is entitled to the order of temporary injunction pending disposal of the suits or whether the interim injunction granted in favor of the applicant/plaintiff in all these application have to be vacated? 71. The plaintiff has filed the four suits which are as follows : S. No. Suit No. Application Types of Brand Name Brand name of No. tyres of the the defendant and plaintiff. Description. 1. 2. 3. 4. 5. 6. 1. C.S.No. 279/88 A. Nos. 1338/88 Scooter NYLOGRIP RADIALGRIP tyre (Registered size 3.50-8 Trade mark with effect From 28-3-84) 2. C.S.No. 311/88 A.Nos. 1339/88 Auto rickshaw MRF AUTO METRO HEAVY tyre MILER DUTY 4.00-8 Atomizer 6 PR Nylon. 3. CS. No. 319/88 A. No. 1454/88 Tractor SHAKTI JAIKISSAN tyre (front) 4. CS. No. 372/88 A. No. 1647/88 Jeep tyre MRF METRO RANGE 6.00-16 ROVER ROVER (Dimension 8 ply rating (Strength) 72. C.S.No. 311/88 A.Nos. 1339/88 Auto rickshaw MRF AUTO METRO HEAVY tyre MILER DUTY 4.00-8 Atomizer 6 PR Nylon. 3. CS. No. 319/88 A. No. 1454/88 Tractor SHAKTI JAIKISSAN tyre (front) 4. CS. No. 372/88 A. No. 1647/88 Jeep tyre MRF METRO RANGE 6.00-16 ROVER ROVER (Dimension 8 ply rating (Strength) 72. The plaintiff has comeforward with the main contention that the defendant has copied to tread pattern of the tyres sold by the ply further and/according to the plaintiff, the plaintiff's tyres with regard to the different vehicles are being manufactured after considerable research and development and after such research and development commercial production was launched upon and their tyres are well known and the sales of their tyres increased year by year because of the features of the tread pattern found in the plaintiff's tyres. 73. Further, according to them, the tyres manufactured by them are given brand names and they have unique appearance with descriptive tread pattern and they have also embossed MRF muscleman symbol. The plaintiff has also stated that the tyres manufactured by different manufacturers having the same circular shape are distinctly different and they are easily distinguishable appearance of tread on the running surface of the tyre and also by their arrangement and get up and appearance of the sidewall consisting of brand names, symbols, tyre specification and descriptions are different in the tyres manufactured by different manufacturers. The advertisement issued by the different manufacturers in dailies, Journals, etc, will be disclosing the pattern of the tread on the tyre and such tread patterns are commercially the identification mark of each manufacturers of the tyres. Each manufacturer creates and popularizes his own distinctive tread pattern and side wall appearance. The dealers, distributors, retailers as well as consumers associate the pictorial pattern of the trade with the manufacturers and their personal preferences regarding quality etc. In the tyre trade the pattern of the tread is accepted as the distinctive hall-mark of the manufacturer. 74. According to the plaintiff, the tread pattern is particularly important where the rural population is highly illiterate and even in Urban areas most of the consumers may be unable to read English and in such circumstances the distinctive tread patterns assume great significance, in differentiating between different manufacturers and the quality of their tyres. 74. According to the plaintiff, the tread pattern is particularly important where the rural population is highly illiterate and even in Urban areas most of the consumers may be unable to read English and in such circumstances the distinctive tread patterns assume great significance, in differentiating between different manufacturers and the quality of their tyres. In such circumstances, the plaintiff alleged that the tread pattern of the plaintiff in the various tyres concerned being copied and the defendant manufacturing tyres with identical or similar tread patterns of the plaintiff is causing confusion with the consumers and is passing off their tyres manufactured by them as the tyres manufactured by the plaintiff and they suffered loss on account such passing off and hence the plaintiff has prayed for injunction. 75. They have also contended that the tyres manufactured for the different vehicles concerned in the four suits have manufactured by the plaintiff some years earlier, whereas the defendant though manufacturing tyres for the different vehicles started manufacturing tyres with the same tread patterns recently and the tyres manufactured and sold by them are of inferior in quality and of lesser in price. 76. On the other hand, the respondent/defendant has contended that they have not copied the tread pattern of various tyres manufactured by the plaintiff and according to them, there is no question of infringement of the brand name of the plaintiff. It is also the contention of the defendant that the plaintiff cannot claim any exclusive right over the tyre pattern and according to them all tyres have tread on which tyre rests in contact with the ground when the vehicle is stationery and when the vehicle is moving. The tread of tyre affords the necessary grip between the tyre and the ground during movement of the vehicle to keep the vehicle substantially stable during movement. 77. Every tread of tyre has a plurality of ribs separated by grooves and the ribs and grooves act in conjunction to provide the necessary road gripping action, and the body of the tyre beneath the tread is normally called the "carcass". The ribs and grooves together with the carcass are formed in moulds during manufacture. 78. The tread of a tyre is an essential and integral part of the tyre itself performing purely a functional and utilitarian role. The ribs and grooves together with the carcass are formed in moulds during manufacture. 78. The tread of a tyre is an essential and integral part of the tyre itself performing purely a functional and utilitarian role. The tread is not something external to the tyre but is an indivisible part of it, unlike a wrapper, a label or a container used for packing an article. The treads come in various "patterns" resulting from the appearance of the ribs and the grooves and as the treads of tyres perform a purely functional and utilitarian role, the manufacturers including the manufacturers in India have adopted treads with patterns which appear substantially the same when viewed by the eye. The tread patterns are not by any means exclusive to any one of the manufacturer because they are communally adopted by different manufacturers for the purpose of affording better road gripping action. The seeming similarities between the tread patterns of different manufacturers result from the common objective of all such manufacturers to provide treads which perform specific function in keeping the vehicle substantially stable during movement, that is to say, when the vehicle is running on the street or when the vehicle is negotiating curies. 79. The tyres of various manufacturers therefore are distinct by their names or by brands (Trade marks) appearing on the respective tyres. The purchasers of tyres do not purchase tyres merely on looking at the tread pattern turning a blind eye to a trade mark of the manufacturer, specifications of the tyre, etc. The purchasers ask for a tyre by name naming the manufacturer. The brand names come to the forefront of a purchaser. 80. The defendant has also further contended that the fread patterns of the plaintiff are not 'Novel" * and such tread patterns have not been registered under the Designs Act or under the Patents Act. The plaintiff not having obtained registration under the Designs Act or under the Patents Act, cannot come up with the suits. The allegations of "passing off" and copying are baseless. The plaintiff has come forward with the case with imaginary allegations to suit their convenience, and the plaintiff's cases are fictitious. The allegation with regard to research and development are all not true and those allegations are misleading. 81. The allegations of "passing off" and copying are baseless. The plaintiff has come forward with the case with imaginary allegations to suit their convenience, and the plaintiff's cases are fictitious. The allegation with regard to research and development are all not true and those allegations are misleading. 81. It was also contended on behalf of the defendant that the tread patterns regarding which the plaintiff has filed the suits have not been registered under the Designs Act or under the Patents Act and as such the plaintiff cannot claim any injunction with regard to tread patterns of which tyres are manufactured by them. While the plaintiff claims that there was research and development with regard to tread patterns, they had not chosen to register the said tread patterns either under the Designs Act or under the Patents Act. Having regard to the provisions of these Acts, it is not now open to the plaintiff to register the tread patterns under either of the Acts and in such circumstances it is not open to them to come forward with the suits. It was also contended that the tread patterns which is part and parcel of a tyre is not a trade mark under the Trade Marks Act but is a design and having not registered under the Designs and Patents Act. the plaintiff will not be entitled to any relief as claimed by them. It was also further submitted that having regard to the nature of the cases concerned, namely Tyres, and the class of purchasers there could be no case of passing off the tyres manufactured by the defendant as those manufactured by the plaintiff. 82. It is to be seen that in C.S. No. 279/88 relating to scooter tyres the plaintiff has alleged that the scooter tyres manufactured by them of the size 3.50-8 are being sold under the brand name NYLOGRIP and they applied for registration the word NYLOGRIP before the Registrar of Trade Marks under the Trade and Merchandise Marks Act, 1958 in Part A of the Register in Class 12 and their mark has been entered in the Register and the Registrar has issued the certificate for local use declaring that the plaintiff is a proprietor of the Trade mark NYLOGRIP with effect from 8-3-1984. 83. 83. The defendant is accused of manufacturing scooter tyres using the word RADIALGRIP which, according to the plaintiff, is phonetically and deceptively similar to the plaintiff's mark NYLOGRIP and the letters in the word RADIALGRIP found in the tyres manufactured by the defendant are similar to the fashion in which the word NYLOGRIP has been embossed on the tyre of the plaintiff and the details of arrangement and get up are displayed in a similar manner as that of the plaintiff and hence amounts to infringement of the plaintiff's trade mark NYLOGRIP and passing off with respect to the pattern of the tyre. As stated earlier, the defendant, according to the counter filed by them, they commenced manufacturing and marketing of the scooter tyres bearing the mark METRO RADIALGRIP from November, 1987 and according to them their mark METRO RADIALGRIP is totally different from MRF NYLOGRIP and the word 'Grip' is purely descriptive expression common to the trade and open to the trade for use. It was also contended on behalf of the respondent/defendant that the word "Grip" occurs in trade marks of several other tyre manufacturers also and such marks find a place in the records of the Trade Mark Registry. In the counter about 9 Trade marks of different manufacturers have been listed and those trade marks have been shown to have been registered. Besides 4 other trade marks have been shown that the word "Grip" which are pending registration. A perusal of those Trade Marks indicates the word "Grip" is either pre-fixed or suffixed as shown below: Trackgrip Gripsafe Rockgrip Gripchief. 84. It will be relevant to point out that it is not the case of the defendant that their trade mark RADIALGRIP has been registered. According to the defendant, some of the Trade marks with the word "Grip" has been registered earlier to the trade mark NYLOGRIP registered by the plaintiff and some after the registration of the plaintiff's trade mark. With regard to this aspect of the contention put forward on behalf of the defendant it was contended on behalf of the plaintiff that the word "Grip" being a part of large number of registered marks did not make the word Grip public juris available for all and so long as the word grip is essential part of the registered trade mark, the owner is entitled for exclusive protection as against unregistered new entrant. In this connection it may be pointed out that it is the grievance of the plaintiff that the defendant's trade mark RADIALGRIP amounts to deliberate false trade description as according to them Radial grip tyres in the tyre trade is known to be a sophisticated and specialized usually more expensive than non-radial tyres and Redial tyres have threads/fabric cords of nylon etc. radially i.e. they converge to the center. Non-radial tyres have the fabric cords in a crises cross manner. Factually the defendant's Radial grip tyres are not Radial in character but are other than Radial and that could be seen by removing the rubber and inspecting the carcass. So it was contended on behalf of the plaintiff that use of the word "RADIALGRIP' amounts to infringement and it has been so used deliberately for passing off the tyres manufactured by the defendant as that of the plaintiff. 85. In this connection it may be pointed out that in the suit C.S. No. 319/88 filed by the plaintiff with regard to the tractor tyre (front) in the counter filed by the respondent/defendant to the application of the plaintiff A. No. 1454 of 1988 the contention has been put forward on behalf of the defendant that their trade mark METRO in the tractor tyre front is about to be registered in class 12 under the Trade and Merchandise Marks Act. Having regard to such contention the contention put forward now that the tread pattern is not a trade mark under the Trade and Merchandise Marks Act as such at this stage cannot be accepted for the purpose of this application Non-registration of the tread pattern by the plaintiff in all the cases with regard to the tyres concerned in the four cases either under the Designs Act or under the Patents Act has to be considered only at the time of the final disposal of the suit. 86. It has further to be pointed out that on seeing the photographs of the scooter tyres manufactured by the plaintiff with the word NYLOGRIP and the defendant with the word RADIALGRIP the appear to be similar in respect of the tread patterns. In the plaint photographs of the scooter tyres manufactured by Ceat, Dunlop and Modi have also been affixed and the difference in tread pattern has been shown in the tyre manufactured by the plaintiff and the tyre manufactured by the defendant. In the plaint photographs of the scooter tyres manufactured by Ceat, Dunlop and Modi have also been affixed and the difference in tread pattern has been shown in the tyre manufactured by the plaintiff and the tyre manufactured by the defendant. The tyres of other manufactures were quite distinctive where as the tyres manufactured by the plaintiff and the defendant are similar in appearance. The word NYLOGRIP on the sidewall on the plaintiff's tyres and the word RADIALGRIP on the defendant's tyres are in the same places of those tyres. No doubt, in the tyre manufactured by the plaintiff we find musceman and also words MRF in bold type embossed and like that in the tyre manufactured by the defendant words METRO also has been embossed besides the word METRO in a circle (METRO) and the word NYLON and the words "Made in India" below the word NYLON have also been em-bossed on the side wall, Having regard to such circumstances the contention put forward on behalf of the plaintiff that the tread pattern of the defendant's tyre is obviously and deceptively similar to the tread pattern of the plaintiff's tyre has to be accepted; 87. It has been contended on behalf of the defendant that as regards of the tread pattern being functional and utilitarian, the tread patterns of the various manufacturers are not by any means exclusive to any one of the manufacturers as they are commonly adopted by different manufacturers. It has to pointed out that the defendant has not produced tyres manufactured by different manufacturers having the same kind of tread pattern and the defendant's tyres of various manufactures are distinct by their names or by their trade marks bearing on the respective tyre and purchasers of tyres do not purchase merely on looking at the tread pattern and they ask for tyres by names. Accepting the said contention, it has to be pointed out as to why the purchasers quote the name of particular manufacture of tyres and want their tyres act. certainly because of the good quality of the tyres manufactured by such of those manufacturers. Such good quality of tyres among other things must necessarily be including tread pattern also. Accepting the said contention, it has to be pointed out as to why the purchasers quote the name of particular manufacture of tyres and want their tyres act. certainly because of the good quality of the tyres manufactured by such of those manufacturers. Such good quality of tyres among other things must necessarily be including tread pattern also. It may be stated that when a purchaser goes to purchase a scooter tyre manufactured by the plaintiff if NYLOGRIP scooter tyre is not available and METRO scooter tyre being available in the shop quite likely the shopkeepers may point out the tread pattern in that tyre manufactured by the defendant and the purchaser may purchase the same having regard to the similarity of the tread pattern irrespective of the manufacturers. Similarity of the tread pattern may also raise a presumption of common origin or close business association between MRF and METRO as contended or behalf of the plaintiff. In such circumstances it may be stated that the tread patterns are not without significance. 88. Whether the plaintiff has really made any research to evolve tread patterns concerned in the suits and whether there has been development of the tread patterns as contended by them are all matters to be established by the plaintiff at the time of trial, but it has to be pointed out that while the plaintiff has come forward with such contention which has been characterized by the defendant as after thought, the defendant has not put forward any such contention that their tread patterns have been evolved in such manner. It is also to be pointed out having regard to the fact that the defendant has manufactured the scooter tyres having similar tread patter long after the manufacture by the plaintif it cannot be contended by the defendant that the plaintiff has no cause of action or they cannot claim any interim injunction pending disposal of the suit. Application No. 1438/88 in CS No. 311/88 89. As regards the Auto-rickshaw tyres manufactured by the plaintiff it is the contention of the plaintiff that they made research and development in the tread pattern and device was finalised and there was commercial production after full test. Auto-rickshaw tyres manufactured by the plaintiff are of the description 4.00 8 Atomiler 6 PR Nylon. As regards the Auto-rickshaw tyres manufactured by the plaintiff it is the contention of the plaintiff that they made research and development in the tread pattern and device was finalised and there was commercial production after full test. Auto-rickshaw tyres manufactured by the plaintiff are of the description 4.00 8 Atomiler 6 PR Nylon. In the plaint photographs of the Auto-rickshaw tyre manufactured by the defendant have been affixed and the plaintiff's tyre at the top and the defendant's tyre at the bottom appear to be similar whereas other tyres manufactured by other companies are quite distinct. It has to be stated that the tread patterns of the tyres manufactured by three other companies are not anyway similar to that of the plaintiff. But on the other hand the tread pattern found on the autorickshaw tyre manufactured by the defendant is similar to that of the plaintiff. No doubt, a comparison of the sidewall of the tyres reveal that in the tyre manufactured by the defendant besides the word METRO in bold capital letters we find the word HEAVY DUTY along with the numbers and Plywriting. According to the plaintiff, they have commercially released Auto-rickshaw tyres. The defendant commence manufacturing and marketing tyres from May, 1987 only. Merely because in the tyres manufactured by the plaintiff the word ATOMILER is found, whereas in the tyres manufactured by the defendant the words HEAVY DUTY are seen it cannot be contended that there could be no passing off of the tyres of the defendant as that of the plaintiff, having regard to the similar tread pattern. 90. As pointed out earlier a purchaser going to the shop where there is no stock of MRF automiler quite likely may accept the METRO HEAVY DUTY tyre of the defendant having regard to the tread pattern thinking that the tyres are of common origin as contended by the plaintiff. In this case also, it may be pointed out that while denying the allegations of research and development of the plaintiff the defendant has not come forward with a version that they had put such research or development. Having regard to such circumstances the contention put forward on behalf of the plaintiff that the tread pattern of the plaintiff has been copied by the defendant and they are passing off the goods as that of the plaintiff has to be accepted. 91. Having regard to such circumstances the contention put forward on behalf of the plaintiff that the tread pattern of the plaintiff has been copied by the defendant and they are passing off the goods as that of the plaintiff has to be accepted. 91. Merely because the plaintiff has not secured registration of the design under the Designs Act or under the Patent Act it cannot be contended that the tread pattern of the plaintiff's Auto-rickshaw tyres could be copied by then defendant The words ATOMILER in the plaintiff's tyre with the Letters MRF and the words HEAVY DUTY with the words METRO in the defendant's tyres cannot be said to the distinguishing features between the tyres manufactured by the plaintiff and the defendant if the tread patterns are similar, The main grievance of the plaintiff is with regard to tread patterns with regard to the tyres of their manufacture, It must also be borne in mind that the purchasers prefer a manufacturer not without any reason and purchasers have such preference only because of the quality and the tread pattern of the tyres will be an important one with regard to the enhancement of the quality of the tyres. It can unhesitatingly be stated that the goods of a particular manufacturer are preferred in the market and in due course to the quality of the goods do not conform to the standards the purchasers will cease to purchase goods produced by such manufacturers. Thus having regard to relevant fact and circumstances I feel the applicant/plaintiff will be entitled to an order of interim injunction in this case also. Application No. 1454 of 1988 in C.S. No. 319/88 92. This suit and the application relate to Tractor tyre (front). The plaintiff has contended that with regard to tractor front tyre research and development was entrusted with the Department of the plaintiff in January, 1977 and they started production of the tyre in bulk evaluation in the year 1982 after development of the tread pattern selecting the tread pattern and they were put in the market in the year 1984. Further, according to plaintiff, having regard to the agricultural purposes for which the tractors are used they have evolved the tread pattern for the tractor tyres. Further, according to plaintiff, having regard to the agricultural purposes for which the tractors are used they have evolved the tread pattern for the tractor tyres. In the plaint photographs of tractor tyres manufactured by the plaintiff as well as the photographs of the tractor tyre manufactured by the defendant have been shown along with the tyres manufactured by some other manufacturers and comparison of the tractor tyre manufactured by the plaintiff with the tractor tyres manufactured by the defendant clearly show that they are identical with regard to the main features of the tread pattern, In the side wall of the tractor tyre front besides the word MRF and the symbol muscleman we find the word SHAKTHI-NYLON with numbers. In the photograph of the tractor tyre manufactured by the defendant we find the words JAIKISSAN along with the word METRO as well as the brand name METRO. But the tread patterns in both tyres appear to be identical. 93. The words SHAKTHI and JAIKISSAN found in the side wall of the tyres of the plaintiff and the defendant respectively cannot be said to be distinguishing features of both the tyres when the tread patterns are similar. As pointed out earlier in the counter filed by the defendant it has been stated that the words Metro Tyre Limited is about to be registered as a trade mark for the tyres of the defendant in Class 12 under the Trade and Merchandise Marks Act. Therefore, the contention that the tread pattern cannot be a trade mark is of no significance and likewise not-registration of the plaintiff's tread pattern under the Design Act or under the Patents Act cannot be said to be giving any right to the defendant to manufacture tractor tyre (front) having the similar tread pattern like that of the plaintiff, while the plaintiff is stated to have been selling the tractor tyres (front) with the said tread pattern, according to the defendant, they are selling only from June, 1987. Having regard to the fact that both tyres are of similar tread pattern, the grievance of the plaintiff that the defendant is passing off their tractor tyres as that off the plaintiff cannot be rejected at this stage. In this case also the defendant did not put forward the contention that they had evolved such tread pattern after some research or development. In this case also the defendant did not put forward the contention that they had evolved such tread pattern after some research or development. Having regards to such circumstances I feel in this case also the plaintiff will be entitled to an order of injunction during the tendency of the suit. Application No. 1647 of 1988 in C.S. No. 372/88 94. In this suit and the application we are concerned with the Jeep tyres. According to the plaintiff they have evolved the trade pattern after research and development and according to them, the tread pattern was evolved after about 7 years and besides the tread pattern developed by them, the side wall of the tyre contains their legend ROVER 6.00-16 (dimension) 8 ply rating (Strength) alongwith the month of manufactures. They also put the word NYLON and their logo of the muscleman inside a circle and their name MRF. It is also stated in the plaint besides them three other leading companies are also producing Jeep tyres of the size and each manufacturer is producing such Jeep tyres having distinct and different distinguishable pattern of tread, but the defendant imitating the tread pattern of the plaintiff and also distinctive features of the plaintiff's' tyres has manufactured Jeep tyres bearing the trade name RANGE ROVER and thus the tyres are deceptively similar to that of the plaintiff. The tread pattern is identical to that of the Jeep tyres produced by the plaintiff and in such circumstances the plaintiff has complained that the tyres manufactured by the defendant for the Jeeps will mislead the public with regard to origin. In the plaint photographs of the Jeep tyres manufactured by the plaintiff and the defendant have been pasted alongwith the photographs of Jeep tyres of other manufacturer and a careful comparison of the tyres make it clear that the tread pattern of the tyres manufactured by the defendant is similar. According in the plaintiff, the letter RANGER ROVER is also likely to mislead the purchasers and they will purchase the same thinking those tyres have been manufactured by the plaintiff. 95. It may be pointed out that according to the plaintiff as stated earlier they are selling such Jeep tyres from the year 1984, and the defendant has not indicated in their counter from what time they are manufacturing Jeep tyres of such a tread pattern. 95. It may be pointed out that according to the plaintiff as stated earlier they are selling such Jeep tyres from the year 1984, and the defendant has not indicated in their counter from what time they are manufacturing Jeep tyres of such a tread pattern. Merely because the defendant's mark METRO RANGE ROVER is different from the mark of MRF ROVER it cannot be contended that there could be no passing off the defendant's tyres as that of the plaintiff. Having regard to the fact that the plaintiff has claimed that they have been selling such Jeep tyres from the year 1984 I feel the contention put forward by the plaintiff with regard to passing off the goods of the defendant has to be accepted in the absence of the defendant's date of manufacture of such tyres with similar tread pattern. Merely saying that the METRO tyres has been known to public for the last 14 years without particular reference to manufacture of Jeep tyres the contention of the plaintiff that the defendant copied the tread pattern of the plaintiff with regard to Jeep tyres also has to be accepted. Mere non-registration of the word ROVER by the plaintiff cannot be said to be giving any right to the defendant to copy the tread pattern of the plaintiff's tyre. The idea conveyed by the word RANGE ROVER is that it is suited to rugged use in the country side can always be said to be an explanation as an after thought at this stage. Having regard to the facts I feel in this case also the plaintiff will be entitled to an order of interim that injunction pending disposal of the suit. 96. It is to be seen as already pointed out in all these cases the applicant/plaintiff has come forward with the grievance regarding copying off the tread pattern of their tyres by the defendant with regard to scooter, auto-rickshaw, tractor tyre (front) and Jeep tyres. The case of the plaintiff is disclosed that the tread pattern for the set tyres have been evolved after research and development and the plaintiff has been selling those tyres for some years earlier to the defendant's tyres. The case of the plaintiff is disclosed that the tread pattern for the set tyres have been evolved after research and development and the plaintiff has been selling those tyres for some years earlier to the defendant's tyres. The respondent/defendant has not come forward with the version that they had put any research and development to evolve such tread patterns, but on the other hand, it is their case that the plaintiff cannot claim any exclusive right to such tread patterns and besides contending that they had not copied the tread pattern of the plaintiff. As regards the scooter tyres the trade mark of the plaintiff has been registered. It may be pointed out as contended by the plaintiff that the trade mark of the plaintiff NYLOGRIP which has been registered is found in the scooter tyres manufactured by the plaintiff and the word RADIALGRIP is used by the defendant which has been registered by them only in scooter tyres and not in other tyres, I have also shown as to how it has been contended that the explanation given by the defendant for using the word RADIALGRIP is improper as the said description will not fit in the manufacture by the defendant. Likewise the plaintiff has used the word ROVER with regard to Jeep tyres and the word RANGEROVER is used by the defendant only in Jeep tyres and not in the tyres of other vehicles. The grievance of the plaintiff is not only user of the word but also similarity of the pattern. 97. It was also contended by the learned counsel for the plaintiff that not with standing the fact that there had been no registration under the Designs Act and the Patents Act the plaintiff will become entitled to the protection under the common law in respect of the tyres of the defendant. The learned counsel for the plaintiff also contended that unscrupulous middleman or dealer could erase the mark of the defendant METRO and emboss in its place the mark of the plaintiff MRF. With regard to such process the learned counsel also demonstrated the process by plaiting the same in the Video. It has to be pointed out that such things have to be established at the time of trial. With regard to such process the learned counsel also demonstrated the process by plaiting the same in the Video. It has to be pointed out that such things have to be established at the time of trial. The learned counsel for the plaintiff also pointed out how there had been complaints of sales of the defendant's tyres and how there had been such passing off the tyres. 98. The contentions put forward on behalf of the respondent/defendant with regard to non-registration under the Designs Act and Patents Act and the plaintiff has no right to claim any monopoly of the tread patterns are matters to be considered at the time of trial. But it could be unhesitatingly pointed out that there are other tyre manufacturers in the country and they are also manufacturing tyres with different tread patterns. Different manufacturers of tyres claim how their tread patterns in their tyres are useful in providing grip even when roads are wet, avoiding slipping down on the roads, giving protection to the vehicle while negotiating turnings, balanced movement of the vehicle even during high speed and also wear and tear. Some of the manufacturers of the tyres claim that their tyres are made of deep tread, extra deep, extra wide grooves for greater speed and wide tread for greater road grip. Therefore it cannot be said that such claims by the tyre manufacturers are without significance. Therefore every tyre manufacturer can be said to be having the right of protection for the tread pattern evolved by them. In such circumstances it can be said that the plaintiff has established a prima facie case for injunction against the respondent/defendant in all these cases. It can also be said that balance of convenience lies with the applicant/plaintiff in all these cases. 99. Number of decisions were relied on by either side. Having regard to the facts I feel it is not necessary to burden this order with all these decisions. The learned counsel for the plaintiff cited an English decisions as well as decisions rendered by our Supreme Court Following are some of the important English decisions relied on by the learned counsel for the plaintiff. (1980)6 RPC 531 CA R. Johnston & Co. v. Arohibald Orr Ewing & Co. That was a case relating to export of Turkey red yarn bearing distinctive label. (1980)6 RPC 531 CA R. Johnston & Co. v. Arohibald Orr Ewing & Co. That was a case relating to export of Turkey red yarn bearing distinctive label. The labels was in triangular shape bearing in green and gold colours the device of two elephants with a dropping cloth or banner suspended between them, upon which were printed the words 'Prime Turkey Red No. 40" * . Between the two elephants there was a crown device. Customers in Bombay came to describe the plaintiffs goods by the words "Bhe Hathi" which in Gujarati meant two elephants. The defendants who had knowledge of the plaintiffs two elephants ticket and of the character and circumstances of the trade in turkey red yarn in Bombay and Aden began in 1875 exporting to Bombay and Aden turnkey red yarn bearing a label similar to the plaintiff's label in many respects. The defendant inserted the figure Ganapathy is between the two elephant devices In that case the plaintiffs alleged infringement of the trade mark and even though there was no evidence of actual deception, injunction was granted by the trial Court which was affirmed by the Court of Appeal. The appeal to the House of Lords was dismissed. 100. 4 RCP 530 (The Sanitas Co. Ltd. v. Condy) That was a case of infringement and passing off and the plaintiffs used and registered the word "Sanitas" as a trade mark for disinfectants. The defendants traded under the names "The G. Gandhi" Sanitants Company"and" The Condistanitant Company", The plaintiffs objected to the use of the name"" Sanitants" by the defendants. When the plaintiffs commenced an action for infringement and passing off, Injunction was granted. "101. (1953) 70 RPC 259 (Scotland) John Haig & Co. Ltd. v. Forth Blending Co. Ltd. The said case related to passing off whisky bottles known as "Dimple". In that case the complainants for many years prior to 1952 sold whisky in a distinctly shaped bottle technically called "Three Pinch decanters". The bottles came to be known as "Dimple" Bottles. The brand was commonly asked for in public houses as "Dimple" whisky. The respondents began selling whisky not distilled by the complainants in bottles of similar shape. The labels used were however wholly different from those used on the complainants bottles. 102. The bottles came to be known as "Dimple" Bottles. The brand was commonly asked for in public houses as "Dimple" whisky. The respondents began selling whisky not distilled by the complainants in bottles of similar shape. The labels used were however wholly different from those used on the complainants bottles. 102. It was held that the respondent in adopting these bottles hoped to obtain some advantage from the connection of "Dimple" bottles with the complainants' whisky. Interdict restraining the respondents from selling whisky not blended for consumption in the U.K. was granted. 103. It has been held in that case that in order to obtain redress in an action for passing off the trader who sues must prove that his goods are known to and recognised by the public, or by a particular section of the public who deal in the type of goods by a particular name, mark, get up or other accompaniment, which is associated in their mind with his goods alone. It is immaterial whether the name or mark is a registered trade name or design, or a registered trade mark, or whether the get-up includes a registered trade mark or design, or whether the acting's of the trader who is sued do not constitute infringement. 104. (1969) 2 Supreme Court Cases 727, Ruston & Hornsby Ltd. v. The Zamindara Eng. Co. The cause related to infringement action and passing off. A limited company having its registered office in England, instituted a suit for permanent injunction against the respondent praying for restraining the respondent and its agents from infringing their registered trade-mark "Ruston" but the suit was dismissed by the Court on the ground that there was no visual or phonetic similarity between" * Ruston"and" Rustam "the trade mark used by the defendant. In appeal the High Court held that the use of word "Rustam" by the defendant did constitute an infringement of appellant's trade mark "Ruston" but the words "Rustam India" was not an infringement because the suffix 'India" * was a sufficient warning that the product sold was not the "Ruston" product manufactured in England. Accordingly the respondent was allowed to use the combination "Rustam India". 105. The Supreme Court in that case has held that an infringement action is quite distinguishable from a "passing off action" although the two are similar also in some aspects. Accordingly the respondent was allowed to use the combination "Rustam India". 105. The Supreme Court in that case has held that an infringement action is quite distinguishable from a "passing off action" although the two are similar also in some aspects. In passing off action the issue is: Is the defendant selling goods so marked as to be designed or calculated to lead purchasers to believe that they are plaintiff's goods? But in an infringement action the issue is: Is the defendant used a mark which is the same as or which is a colourable imitation of the plaintiff's registered trade mark? 106. AIR 1974 Madras (K.R.C. Chetty v K. V. Mudaliar). That decision was rendered by learned Chief Justice K. Veeraswami and justice Raghavan in our High Court. Their Lordships in that case have held that the legend "Andal" is deceptively similar to existing legend "Sri Ambal" and addition of word "Radha" to it will not make slightest difference. Refusal to register was held justified. 107. 1984 AIR(Delhi) 441. (M/s Manoj Plastic India v. M/s Bhola Plastic Industries). That decision related to passing off action and that facts reveal that the plaintiff's and defendant's were dealing in identical mirrors in the same trade mark "I only" and there was evidence that the plaintiffs were prior users of said mirrors and had been dealing in them regularly before defendants and balance of convenience was held in favor of the plaintiffs and temporary injunction was granted. 108. 1981 (1) PTC 46, 1980 AIR(Delhi) 254 (Ellora Industries v. Banaras' Dass Goela). The decision related to passing off. In that case to page 256 in paragraph 12 it has been stated as follows:- "The purpose of this tort is to protect commercial goodwill, to ensure that people's business reputations are not exploited. Since business "goodwill" is an asset, and therefore, species of property the law protects it against encroachment as such. The tort is based on economic policy, the need to encourage enterprise and to ensure commercial stability. It secures a reasonable area of monopoly to traders. It is thus complementary to trade mark law which is founded upon statute rather than common law" * . The tort is based on economic policy, the need to encourage enterprise and to ensure commercial stability. It secures a reasonable area of monopoly to traders. It is thus complementary to trade mark law which is founded upon statute rather than common law" * . After pointing out the difference between statute law relating to trade marks and passing off action, it has been further held that "the asset protected is the reputation, the plaintiffs business has in the relevant market That is a complex thing. It is manifested in the various indicia which lead the client or customer to associate the business with the plaintiff, such as the name of the business whether real or adopted, the mark, design, make-up or colour of the plaintiff's goods, the distinctive characteristics of services the supplies or then at use of his special processes. And it is around encroachments upon such indicia that passing off actions arise" * . 109. The learned counsel for the respondent/defendant relied on ( 1909 (26) RPC 765 at 773 (J.R. Williams Co. v. H. Brennley & Co. Ltd.). The learned counsel for the respondent pointed out that in that case the learned Judges have held that "the get-up of an article means a capricious addition to the article itself, the colour or shape, it may be, of the wrapper or anything of that kind; but I strongly object to look at anything that has a value in use, as part of the get-up of the article, anything which is in itself useful appears to me rightly to belong to the article itself. For instance, supposing that a firm had been, say for twenty years, the only firm to sell wooden chairs in which the natural wood was simply varnished and not pointed at all, that would not give them the slightest right to complaint of a person putting on the market chairs simply varnished, even though they had been the only persons who had sold them for as long that such chairs might at first be supposed to be their manufacture. The reason is that the newcomer has not in any way imitated the get up; he has only reproduced the article" * 110. This decision was relied on by the learned counsel for the respondent to show that the plaintiff cannot claim any exclusive right with regard to the trend pattern of the tyre. The reason is that the newcomer has not in any way imitated the get up; he has only reproduced the article" * 110. This decision was relied on by the learned counsel for the respondent to show that the plaintiff cannot claim any exclusive right with regard to the trend pattern of the tyre. But having regard to the facts discussed above with regard to the tread pattern I feel such observations may not be helpful to the case of the respondent. 111. The learned counsel also placed reliance on the decision in Gordon Fraser Gallery Ltd. v. Tatt 1966 RPC 509. With regard to passing of where the plaintiff has no registration of the tread pattern. Another case relied on by the learned counsel for the respondent is 1957 RPC 8 Hawkings & Tipson Ltd. v. Fludes Carpets Ltd) where in it was held as follows:- "This is in fact not really a passing off case as regards "get up" in any way at all. It is not a question of get up; it is a question of the actual article which is sold. It seems to me that the rules which apply are not quite the same in case of this kind as they are where some artificial covering to distinguish an article as being that of the manufacturers or sellers has been used, as opposed to where it is simply a question of the shape and appearance of the article which has been sold" * 112. The learned counsel contended that the tyre tread being an essential and useful part of the article itself is therefore not the same thing as containers used for packing goods eg. A bottle containing a soft drink. 113. The learned counsel also submitted other decisions which may not be quite relevant and having regard to the entire facts and circumstances of the case as already pointed out I find that the plaintiff has clearly established a prima facie case for injunction in all these cases. 114. In the result, Application Nos. 1338, 1439, 1438, 1454 & 1647 of 1988 are allowed. Application Nos. 2035, 2036, 2414, 2418/88 in C.S. No. 279/88, Application Nos. 2100 and 2417/88 in C.S. No. 311/88, Application Nos. 2033 and 2416/88 in C.S. No. 319/88 and Application Nos. 2032 and 2415/88 in C.S. No. 372/88 are dismissed. The parties are directed to bear their own costs.