Judgment Ravi Nandan Sahay, J. 1. This appeal arises from the order of the District judge, Patna dated 8.7.1996 whereby learned District Judge granted interim injunction on the prayer of the plaintiff-respondent and restrained the defendant-appellant till disposal of the suit from- printing the magazine vikaspuram Times under this title which it is using at present in which the word vikaspuram is in small letters and Times is in very bold letters and the order further restrained the appellants from using the words Times group of Companies till the disposal of the suit. 2. The suit is under section 105 of the Trade and Merchandise Marks Act, 1958 for permanent injunction restraining infringement of trade mark, passing of rendition of account of profits, delivery up, etc. The plaintiff is incorporated under the Indian Companies act, 1956, and is Indias largest publication house engaged in publication business since 1838 and is also engaged in publishing many Newspapers and magazines and the word Times has been used by the plaintiff exclusively and continuously as the key essential and distinguishing feature of title, trade marks on all its leading newspapers. The appellant (defendant in the suit) is engaged in the business of printing and publishing and has started its publication of one monthly magazine under the title vikaspuram Times in which the prefix vikaspuram is used in small letters in most conspicuous manner and the word Times is magnified and enlarged in bold letters so as to make it appears as if the title of the magazine is times and not vikaspuram Times. The action of the defendant is said to be fraudulent and malicious and the defendant-appellant is representing itself to the members of the public at large as the Times Group of Companies which amounts to passing off the action resulting misappropriation of plaintiffs goodwill and causing confusion and deception in the mind of general public. 3. Pursuant to the show-cause notice, the appellant filed show cause. Main defence of the appellant is that the suit was not maintainable and the company of the appellant, namely, times Economy India Ltd. is a registered company from the Registrar of Companies and the magazine which is being published by the appellant is also registered by the competent authority under the provisions of Press and Books Registration Act, 1867. The appellant was publishing the magazine since 1989. The appellant was publishing the magazine since 1989. Since 1989 no objection has been raised from any corner. It is further stated in the show cause that the plaintiff besides publishing different newspapers is presently publishing three magazines, namely- Dharmyug (Hindi), femina (English) and Filmfare (English) and in none of these magazines the word Times is there and nowhere the word Times has been used and only the name of the publisher as bennett Coloman and Co. Ltd. has been given and as such the objection of the plaintiff is thoroughly untenable. It is further submitted that there are large number of such newspapers like, Hindustan, Times, Patliputra Times, Rupee times, Money Times, Creative Career times, J. V. G. Times, Kuver Times, New bihar Times, Mithila Times, Rohtas times and Sasaram Times. The plaintiff has not raised any objection against the publication of the said magazines. Charge of confusion of deception has been denied. 4. According to the plaintiff, it has come about to be referred to as the times Group by the media and, therefore, the mark Times has become distinctive of the goods, business and services of the plaintiff and the plaintiff is, therefore, proprietor of the trade mark Times having exclusive right to use it. "vikaspuram Times" is registered under the Press and Registration of books Act, 1867 since 1989 and no such registration has been granted by the registrar of Newspapers under the press and Registration of Books Act in favour of the defendant. 5. Learned District Judge has elaborately dealt with the rival contentions of the parties in paragraphs 6 and 7 of his order. In paragraph 8 of the order, learned District Judge being satisfied that the plaintiff has made out a case of grant of injunction, granted injunction restraining the defendant as indicated above. 6. Mr. Dwivedi, learned Counsel for the appellant vehemently argued that the order of the District Judge is based on the basis of misinterpretation of Trade and Merchandise Marks Act, 1958. Learned Counsel has taken the same stand which was taken before the district Judge on behalf of the defendant. 6. Mr. Dwivedi, learned Counsel for the appellant vehemently argued that the order of the District Judge is based on the basis of misinterpretation of Trade and Merchandise Marks Act, 1958. Learned Counsel has taken the same stand which was taken before the district Judge on behalf of the defendant. He submitted that the learned district Judge totally failed to appreciate that even the registered trade marks which is being referred to by the plaintiff-respondent that relates and pertains to the name of a newspaper that does not prohibit whole of the world in use the word Times anywhere in any other context. He further submitted that the banner name of the plaintiff-respondent is not registered under the provisions of the Trade and merchandise Marks Act, 1958. The plaintiff has never acquired any right over the word. Times and hence it did not have any right to object against the use of the word Times by the defendant-appellant either in the name of the company or in the name of the magazines. 7. Mr. Y. V. Giri, learned Sr. Counsel for the respondent placed before me a sample of the magazine of June, 1996. It is evident that the word Times is displayed in bold caption. In one place at page 66 there is advertisement with caption Times Group Ke Badhte Kadam". "learned Counsel for the plaintiffrespondent submitted that if the essential features of a registered trade mark and that of the infringing trade mark arc deceptively similar, it will amount to the infringement of the registered trade mark. It is but obvious that the mark times is the essential feature which has been used, misappropriated and pirated by the appellant with the sole motive and conscious attempt to trade upon the goodwill and reputation of the respondent. It is essentially a passing off action and not an action for infringement of trade mark. 8. Salmond on the Low of Torts, seventeenth Edition explained the nature and character of passing off action as follows : "to sell merchandise or carry on business under such a name, mark, description, or otherwise in such a manner as to misled the public into believing that the merchandise or business is that of another person is a wrong actionable at the suit of that other person. This form of injury is commonly, though awkwardly, termed that of passing of ones goods or business as the goods or business of another and is the most important example of the wrong of injurious falsehood, though it is so far governed by special rules of its own that it is advisable to treat it separately, the gist of the conception of passing off is that the goods are in effect telling a falsehood about themselves, are saying something about themselves which is calculated to mislead. The law on this matter is designed to protect traders against that form of unfair competition which consists in acquiring for oneself, by means of false or misleading devices, the benefit of the reputation already achieved by rival traders. Normally the defendant seeks to acquire this benefit by passing off his goods as and for the goods of the plaintiff in one or more of the modes specified later. But in the Cosfa Brava case it was held that the law governing trade competition is wide enough to prevent a person attaching to his product a name or description with which it has no natural connection in order to make use of the reputation and goodwill gained by a product genuinely indicated by that name and description. " 9. In Elora Industries V/s. Banarasi dass, AIR 1980 Del 254 , the plaintiffs were the registered proprietors of trade mark elora in respect of watches, time pieces, clocks and their parts. Defendants manufactured time pieces with their distinctive mark gargon on the card-board container in which time piece is sold the following is printed on two sides in bold letters "ellora INDUSTRIES GARGON (PUNJAB ). " avadh Behari Rohatgi, J. discussed the law on the subject exhaustively. He relied on the following observations of wynn-parry, J. in Mcculloch V/s. Lewis may (Produce Distributors) Ltd. , (1947)2 All ER 845 (851): "i am satisfied that there is discoverable in all those cases in which the court has intervened the factor that there was a common field of activity in which, however, remotely, both the plaintiff and the defendant were engaged and that it was the presence of that factor that grounded the jurisdiction of the court. " Learned Judge observed in para 18 of his judgment as follows: "the principal question revolves round the twin notions (1) that the defendants misstatement must be one that would be taken as a reference to the plaintiff, and (2) that the plaintiff must be likely to suffer in consequences. As to the first of these conditions the misstatement does not have to make out more than that the plaintiff has some connection with the defendants goods or business. And it is accepted that a reference to the plaintiff as a trade source may be inferred in some circumstances where he is not known by the name, as for instance, where it is his trade mark that is known - Birminghan vinegar Brewery Co. V/s. Powell, 1897 AC 710. If the customer is misled into thinking about the trade origin or source of the goods it is a case of passing-off. The second condition is fulfilled by showing that direct competition will damage the plaintiffs goodwill by, losing him customers. Loss of sales is not the only form of probable injury that will suffice, loss of reputation among distributors has been accepted as sufficient. " Fleming The Law of Torts, 5th Edn. pp.702-703 states as under: "to demand a common field of activity would not only be incompatible with the growing trend towards diversification in business, but also foist an unwarranted limitation on a tort based simply on the prejudice to goodwill from practices that are actually calculated to confuse. " In para 20 of the Judgment, learned Judge observed: "on the question whether there can be passing off if the fields of activity are different, opinions differ. But everybody is agreed that if the line of business is same or allied there is an immense potential for confusion, deception and temporal har,. The test of common field of activity comes handy". In paragraph 27 the learned Judge has observed as follows : "in the present case the fact that the plaintiffs and the defendants are direct competitors is the most obvious reason for inferring likelihood of injury. ellora as a business name suggests. associations with the plaintiffs registered trade mark. It is suggestive of the fact that goods come from the same source. It imports a reference to its origin a trade connection with the registered proprietor elora. This is an untrue statement. ellora as a business name suggests. associations with the plaintiffs registered trade mark. It is suggestive of the fact that goods come from the same source. It imports a reference to its origin a trade connection with the registered proprietor elora. This is an untrue statement. It is a false statement that is likely to mislead the public as the origin of the goods. It is a commercial benefit which is derived from usurpation of the fruits of a competitors labour The present case illustrates the misuse of business names. It is an action against an imitator which is reaping without sowing". 10. The observations quoted above apply to the facts of this case. 11. In B. K. Engineering Co. V/s. U. B. H. I. Enterprises (Regd), Ludhiana air 1985 Del 210 , the same learned judge reviewed the law on the subject. The facts of that case were that the plaintiffs and the defendants were engaged in the manufacture of cycle bells. The plaintiffs adopted "b. K. " as their house mark. They manufactured cycle bells under the trade mark Crown and Venus. B. K. was used as a circular logo device in the form : B. K. on the stand of the bell and the carton the name of the manufacturer, "b. K. Engineering Co. " was stamped. The defendants were marketing cycle bells under the trade mark "b. K.-81". U. B. H. I. Enterprises Regd, was engraved on the dome-shaped cover along with words "b. K.-81". It was held by the learned judge that the plaintiffs were entitled to the temporary injunction restraining the defendants, their servants, agents, representatives and dealers from manufacturing, selling or offering for sale or otherwise dealing in cycle bells under the mark "b. K.-81" or "b. K. " or any other mark which may be identical of deceptively similar to the house mark "b. K. " of the plaintiffs till the decision of the suit as the balance, on the whole tilts in favour of the plaintiffs. 12. Learned District Judge decided the matter on the basis of undisputed facts and materials. The trial of the suit has yet to conclude and the final decision of the suit is awaited. Therefore, it is appropriate that the question of temporary injunction,was decided only on the basis of undisputed facts and the material which can legitimately be taken into account at the interlocutory stage. The trial of the suit has yet to conclude and the final decision of the suit is awaited. Therefore, it is appropriate that the question of temporary injunction,was decided only on the basis of undisputed facts and the material which can legitimately be taken into account at the interlocutory stage. In a very recent decision of the Supreme Court in N. R. Donger and ors. V/s. Whirlpool Corporation. and Anrs. J. T.1996 (7) S. C.555, Hon ble Supreme court observed that the appellate court should interfere with the discretion exercised by the trial court granting temporary injunction only when it is found that the discretion in favour of the plaintiff is contrary to the settled principles for the grant of a temporary injunction or that it is arbitrary or perverse. The Supreme Court in para-9 of its judgment referred to the decision in Wander Ltd. and Anr. V/s. Antox India P. Ltd. , 1990 (Supp.) S. C. C 727, wherein scope of interference by appellate court with the exercise of discretion of court of first instance were summarised and reiterated as under: ". . . . . . . In such appeals, the appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate court will not re-assess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial courts exercise of discretion. After referring to these prin-ciples Gajendragadkar, J. in Printers (Mysore) Private Ltd. V/s. Pothan Joseph, 1960 (3) S. C. R.713 at 721. :. . After referring to these prin-ciples Gajendragadkar, J. in Printers (Mysore) Private Ltd. V/s. Pothan Joseph, 1960 (3) S. C. R.713 at 721. :. . . . . . . . . These principles are well established, but as has been observed by viscount Simon in Charles Osenton and Co. V/s. Jhanaton . . . . . . the law as to the reversal by a court of appeal or an order made by a judge below in the exercise of his discretion is well established, and any difficulty that arises Is due only to the application of well-settled principles in an individual case. an infringement action is available where there is violation of specific property right acquired under and recognised by the Statute. In a passing-off action, however, the plaintiffs right is independent of such a statutory right to a trade mark and is against the conduct of the defendant which leads to or is intended or calculated to lead to deception. Passing-off is said to be a species of unfair trade competition or of actionable unfair trading by which one person, through deception, attempts to obtain an economic benefit of the reputation which another has established for himself in a particular trade or business. The action is regarded as an action for deceit. The tort of passing- off involves a misrepresentation made by a trader to his prospective customers calculated to injure, as a reasonably foreseeable consequence, the business or goodwill of another which actually or probably, causes damages to the business or good of the other trader. . . . . . " 13. In view of the decisions referred to above, it cannot be said that in the instant case, the order of the District Judge granting temporary injunction is perverse or contrary to the principle of grant of temporary injunction in passing off action. I, therefore, dismiss this appeal and vacate the stay order granted by this Court. However, the district Judge, Patna is directed to dispose of the suit -on merits within two months of receipt of this order. In the facts and circumstances of the case, there shall be no order as to costs. Appeal Dismissed.