Emco Lenze Pvt. Ltd. . v. Emco Precima Engg. Pvt. Ltd. — 1997 DIGILAW 388 (BOM)

JUDGMENT S.S. NIJJAR, J.:---This suit has been filed by Emco Lenze Pvt. Ltd., against Emco Precima Pvt. Ltd., for an order of perpetual injunction restraining the defendants from using the word "Emco" as part of their corporate name or trading style so as to pass off the defendants goods as that of the plaintiffs. The perpetual injunction is also sought for restraining the defendants from using in relation to any clutches, brakes or combination thereof the mark Emco or any other deceptively similar mark so as to infringe the plaintiffs' trade mark bearing Application Nos. 540525 and 543 848 dated 23rd November, 1990 and 21st January, 1991 respectively with the Trade Mark Registry when registered. A sum of Rs. 50 lakhs is claimed by way of damages or in the alternative it is prayed that the defendants be ordered and decreed to render a true and faithful accounts of all the profits earned by the defendants by using the trade mark Emco. 2. According to the plaintiffs Ishwarlal Damodar Gandhi, Chandrakant Damodardas Gandhi, Bipin Damodardas Gandhi, Harish Damodardas Gandhi, Anil Damodardas Gandhi, (brothers) constituted what is known as Gandhi Family. This family in the year 1964 got incorporated a Company known as Emco Electricals Pvt. Ltd., (hereinafter called "the Company"). The business of the said Company constituted of two divisions viz. Transformer Division and Industrial Brakes and Clutches Division. The Gandhi Brothers were the main shareholders of the Company. In 1975 the company entered into a collaboration agreement with a company known as Lenze of Germany. This German Company provided the know how to the company. Production of industrial brakes and clutches was started by the company in the year 1977. In 1990 disputes arose between the members of the family. These disputes were referred to arbitration by one Indulal H. Shah. The Arbitrator gave his award on 23rd April, 1990. A decree was passed in terms of the Award by this Court. Under the Award Industrial Brakes and Clutches Division along with Emco Dynatorq was allotted to the Chandrakant Gandhi branch of the family w.e.f. 1-4-1990. Emco Dynatorq was earlier known as Bharat Foundaries which was a partnership firm. Under this Award the parties were to enter into an Agreement providing for take over as provided in the Award. On 29th August, 1990 the necessary agreement was executed. Emco Dynatorq was earlier known as Bharat Foundaries which was a partnership firm. Under this Award the parties were to enter into an Agreement providing for take over as provided in the Award. On 29th August, 1990 the necessary agreement was executed. Under this Agreement, Emco Dynatorq, hereinafter called "the firm' took over the business of Industrial Brake and Clutch Division of the Company. All right, title, interest, property and claim of the company in the assets of the Industrial Brake and Clutch Division of the Company were taken over. The trade marks, patents, copyrights vested in the company along with the benefits of all contracts, licences, permit, sanctions, quota were also taken over by the firm. The Company also transferred to the firm the benefits of the collaboration agreement with Lenze. This agreement was executed on 27th October, 1988 and was to expire on 20th April, 1993. It has been approved by the Government of India by their letter dated 21st July, 1988. Certain transitional provisions were also made. On 22-1-1991 by a supplementary agreement various designs of the Company were also transferred to the firm. In paragraphs 10 and 11 of the plaint it is stated that by virtue of clause 1 of the agreement all benefits and rights in respect of the trade mark, pertaining to the brakes and clutches division stood transferred to the firm. The firm took over all the assets including the trade marks Emco and Emco Simplatrol. Thereafter they continued the business of manufacturing Emco Brakes and Cluctches. On 9th November, 1991 a Company known as Emco Dynatorq Transmissions Pvt. Ltd., was incorporated. This company took over all assets and liabilities of the earlier firm Emco Dynatorq. The name of this new company Emco Dynatorq Transmissions Pvt. Ltd., was changed to Emco Lenze Pvt. Ltd., w.e.f. 23rd August, 1993. The shares in this company were held by the Chandrakant Damodardas Gandhi, hereinafter called "C.D. Gandhi", branch of the family on the one hand and Lenze, the German Company on the other hand. Since 1990 the business of brakes and clutches with the trading name of Emco has been developed by the plaintiffs. It is stated that in the year 1990-91 the turnover of the Company was 161.64 lakhs while in the year 1994-95 the turnover was 375 lakhs. The company had spent huge amounts of money on promotion of their products. Since 1990 the business of brakes and clutches with the trading name of Emco has been developed by the plaintiffs. It is stated that in the year 1990-91 the turnover of the Company was 161.64 lakhs while in the year 1994-95 the turnover was 375 lakhs. The company had spent huge amounts of money on promotion of their products. The amounts spent are as follows. 1990-91 : 5.60 lakhs. 1991-92 : 5.97 lakhs. 1992-93 : 6.65 lakhs. 1993-94 : 5.26 lakhs. 1994-95 : 6.45 lakhs. On 23rd March, 1994 Ishwarlal Damodar Gandhi, hereinafter called "I.D.Gandhi", branch of the family promoted and incorporated a Company known as Emco Precima Engineering Pvt. Ltd. I.D.Gandhi had signed the agreement between the parties on 29th August, 1990. Yet he permitted the defendant Company to be incorporated. On 26th July, 1994 C.D.Gandhi wrote to I.D.Gandhi requesting them not to use the trade name "Emco as a prefix or a suffix in their corporate name. On 29th March, 1995 I.D.Gandhi had informed C.D.Gandhi by letter that they will not oppose the application for registration of trade mark made by C.D.Gandhi provided they in turn did not have any objection to the defendants using the name Emco Precima Eng. Pvt. Ltd., as the company name, trading name and trading style. This letter was written because the applications of the plaintiffs for registration of the trading name "Emco" were pending with the Registrar of Firms. Application dated 23rd November, 1990 has been made for registration of Mark " Emco Simplatrol" and application dated 21-1-1991 has been made for the registration of the word " Emco" in respect of clutches, brake and combination thereof. These items are included in class 7. The plaintiffs had made applications for bringing them on record as the subsequent proprietors in respect of the firm. The plaintiffs further state that by reason of the exclusive use of the trade mark Emco and Emco Simplatrol and extensive business carried on by the plaintiffs and their predecessor in the said name the word Emco has come to be associated by traders and members of the public exclusively with the plaintiffs and carries substantial brand equity. When the plaintiffs learnt about the incorporation of the defendant Company they made an application on 11th August, 1994 to the Regional Director under the provisions of section 22 of the Companies Act, 1956. When the plaintiffs learnt about the incorporation of the defendant Company they made an application on 11th August, 1994 to the Regional Director under the provisions of section 22 of the Companies Act, 1956. The plaintiffs had contended before the Regional Director that it was necessary that the word "Emco" be deleted from the name of the defendants so as to prevent damage to the plaintiffs. The Regional Director, however, by his order dated 23-1-1995 rejected the said application. Against the aforesaid order the plaintiffs filed a Writ Petition No. 1251 of 1995. This writ petition was also rejected by an order dated 8th August, 1995. LPA No. 835 of 1995 filed against the order dated 8th August, 1995 is admitted and pending hearing. 3. Notice of Motion has been taken out for the grant of interlocutory reliefs in the nature of injunction restraining the defendants from using the word "Emco" as part of their corporate name or trading style so as to pass off the defendants goods as that of the plaintiffs. The orders of temporary injunctions are sought in the same manner as the orders for perpetual injunction also. An affidavit in support of the Notice of Motion has been filed. The facts as narrated in the plaint have been reiterated. 4. Defendants have filed an affidavit in reply. It is stated that the Notice of Motion deserves to be dismissed for abuse of process of law. The plaintiffs have deliberately suppressed the real name of the defendant which is Emco Precima Engineering Pvt. Ltd., and have chosen to describe the defendant as Emco Precima Pvt. Ltd. The suit itself has been filed only out of business rivalry. The word "Emco" is an acronym coined from a partnership firm called M/s. Murray and Company. This firm was founded by the father of the five Gandhi's brothers. The whole family was carrying on the business in the name of Murray Company. Thus all the business activities and concerns of Gandhi Family were and are doing business with the name starting with the words "Emco". Thus the use of the word 'Emco' is not exclusive for the plaintiffs. The plaintiffs have no exclusive rights over the said name. The word "Emco" was first used by M/s. Murray and Company in their registered trade mark under No. 253230 and 253229 in Class 9 which are still subsisting. Thus the use of the word 'Emco' is not exclusive for the plaintiffs. The plaintiffs have no exclusive rights over the said name. The word "Emco" was first used by M/s. Murray and Company in their registered trade mark under No. 253230 and 253229 in Class 9 which are still subsisting. The defendants have then listed names of 12 Gandhi family concerns who are carrying on business with the name starting with prefix "Emco". The word "Emco" is, therefore, used commonly by all the brothers of the Gandhi family. According to the defendants, the plaintiffs themselves have admitted this facts in paragraph 22 of the plaint which reads as follows: "The plaintiffs states that by reason of the business of different types undertaken by the Original Company viz. Emco Electricals Pvt. Ltd., and the subsequent diversification of business by various firms formed or constituted by the said Gandhi Family, the word Emco naturally was used by such firms...." Thus it is stated that it is absolutely false on the part of the plaintiffs to suggest that they have any exclusive proprietary right in the use of the word Emco or that the defendants have used the word Emco as the prefix to their corporate name deliberately or with a view to pass off the goods of the plaintiff Company. The word Emco is a house mark common to all firms and companies of the Gandhi family. There is no misrepresentation or deception being practised by the defendants intentionally and unintentionally. In any event, the good manufactured by the plaintiffs and the defendants viz. electro magnetic brakes and clutches are highly technical products which are sold to Engineering Companies engaged in the manufacture of machine tools and textile machineries. The manufacturers of the above equipments have special purchase department consisting of all qualified engineers and the goods in question have to pass through their qualified hands before ultimately a purchase order is placed for purchasing the goods. Number of procedures have to be gone through before an order is placed. Thus it cannot be said that the goods are sold off the counter. The customer for these goods is educated and discerning. Thus there is no scope for any deception or confusion merely by the use of the prefix Emco in the corporate name of the defendants. Number of procedures have to be gone through before an order is placed. Thus it cannot be said that the goods are sold off the counter. The customer for these goods is educated and discerning. Thus there is no scope for any deception or confusion merely by the use of the prefix Emco in the corporate name of the defendants. Further the Company Emco Electricals Pvt. Ltd. had only transferred a division dealing with brakes and clutches. The original Company continues to exist. Even if it is assumed that Emco was an unregistered trade mark the same could have been assigned by the company only together with goodwill. Since the goodwill has not been assigned there can be no valid assignment of the unregistered trade mark. The goodwill could not have been assigned as the original company continues its manufacturing activities. Further it is stated that Emco is a registered trade mark under Nos. 253230 and 253229 in Class 9 for electrical apparatus and instruments in the name of Murray and Company. This partnership firm was floated sometime in the year 1947. Thus Murray and Company alone could claim exclusive title to the trade mark Emco and that too only for the product which fall in Class 9. Subsequently when the plaintiffs have applied for registration of the trade mark Emco they had applied under Class 7 which is the wrong class, as according to the Award dated 23rd April, 1990 properties and assets of Murray and Company are to remain properties in the common pool of the five family groups. The word Emco is, therefore, part of the common pool. In any event the defendants are using the trade mark Emco Precicon. This is totally different from the trade mark of the plaintiffs which is Emco Lenze. It is further stated that the Notice of Motion deserves to be dismissed on ground of delay and laches. The goods of the defendants have been on the market since 1994 and the Notice of Motion has been taken out in 1995. 5. Mr. Tulzapurkar, learned Counsel appearing for the plaintiffs, has submitted that they are required to prima facie show to this Court that the plaintiffs have a reputation of association with the Trade mark. The trade mark has been misrepresented and that damage is likely to be caused. 5. Mr. Tulzapurkar, learned Counsel appearing for the plaintiffs, has submitted that they are required to prima facie show to this Court that the plaintiffs have a reputation of association with the Trade mark. The trade mark has been misrepresented and that damage is likely to be caused. It is stated that various tests laid down by the Courts are satisfied by the plaintiffs. The tort of passing off is to be judged in 3 facets viz. (i) reputation, (ii) misrepresentation and (iii) damage. According to the Counsel, the reputation of the plaintiff has been established by the turnover which has been stated above. Damage is likely to be caused as there has been confusion caused by the name Emco by the defendants. In order to establish that confusion has arisen in the minds of the customers of the plaintiff, Counsel has referred to a number of letters which are attached with the plaint. He states that a perusal of these letters would show that the customers have been placed in a statement of wonderment. Thus the element of confusion having been established the plaintiffs are entitled to an order of injunction. Counsel has referred to the commentary contained in a book titled "Passing of Law and Practice" Second Edition, 1995. He has drawn my attention in particular to paragraphs 2.33 and 2.36. Relying on the said paragraphs it is submitted that the House of Lords had identified 5 characteristics which must be present in order to create a valid cause of action for passing off. These were however subsequently condensed into 3 facets as stated above. This submission is made on the basis of paragraph 2.36 of the said book. Counsel has thereafter referred to Kerly's Law of Trade Marks and Trade Names, 12th Edition (1986). Paragraphs 16.49 and 16.52 have been brought to my notice. On the basis of these paragraphs it is submitted that an action for passing off will lie wherever the defendant Companies name is calculated to deceive and so to divert business from the plaintiffs or to occasion a confusion between the two business. Where there is probability of confusion in business, an injunction will be granted even though the defendants adopted the name innocently. On the basis of paragraph 16.52 it is submitted that the name Emco is suggestive of the origin of the goods. Where there is probability of confusion in business, an injunction will be granted even though the defendants adopted the name innocently. On the basis of paragraph 16.52 it is submitted that the name Emco is suggestive of the origin of the goods. It is submitted that when the customers see the name Emco they presume that the goods have been produced by the plaintiffs. In other words, the customer is likely to think that the defendants are either an Association of the plaintiffs or they are agents of the plaintiffs. In paragraph 16.52 it is suggested that if the name of the defendants company is one which is calculated to lead to the belief that it is an agency, branch or department of the plaintiffs company an injunction would be granted, unless of course, what is suggested is true. In the alternative it is submitted that if this Court is not inclined to grant a general injunction then at least a restricted injunction could be granted. The defendants, submits the Counsel, can be permitted to manufacture all other products under the name of Emco but they should be restrained form using the word Emco with regard to brakes and clutches. Reliance for this proposition is made on a judgment of this Court reported in (1990) 1 P.L.R page 298 (Optrex India Ltd. v. Optrex Ltd.)1. In that case the injunction was restricted to eye lotions, eye baths and eye washes. Counsel has also relied on judgment of the Privy Council reported in 1887 (12) Appeal Cases page 453 (Thomas Somerville v. Paolo Schembri)2. In that case it has been held that use of the name Kaisar-i-Hind for the sale of cigarettes would be prohibited. However, using the said name for other products could not be prohibited. Counsel then relied on 1965 RPC page 323 (Parker Son v. Parker)3. In this case the High Court held that restricted injunction can be granted. Therein the defendants had been restrained form using the trade style (Parkers) in reading. He was permitted to continue the said name in other localities. This authority is also pressed into service to answer one of the defences taken in the affidavit in reply to the effect that the word "Emco" is generic and is not exclusive for the benefit of the plaintiffs. Counsel thereafter relied on A.I.R 1978 Delhi page 250 (Century Traders v. Roshan Lal Duggar Co.)4. This authority is also pressed into service to answer one of the defences taken in the affidavit in reply to the effect that the word "Emco" is generic and is not exclusive for the benefit of the plaintiffs. Counsel thereafter relied on A.I.R 1978 Delhi page 250 (Century Traders v. Roshan Lal Duggar Co.)4. In that case it is held that it is not necessary even to show exclusive user of the name before a case can be said to have been made out for issue of an interim injunction. Counsel had thereafter relied upon the Commentary given in the book under the title of "Law of Passing off" by Christopher Wadlow Second Edition 1995. Reference is made to paragraph 6.12. In this paragraph it is stated that on the traditional understanding of the tort, it was necessary for the plaintiffs to prove that the mark relied on was distinctive of him alone. The modern definition of the law is based on misrepresentation. If the mark is used by the plaintiff alone then the likelihood is that it is distinctive of him and adoption of it by a competitor raises a prima facie case of passing off. Relying on these authorities Counsel has submitted that prima facie case has been made out. The trade mark has been assigned under an agreement. The plaintiffs have been manufacturing the goods under the trade name. He further submits that there is actual proof of confusion in the shape of the letters which have been attached to the plaint. Furthermore, it is not necessary to establish that the use of the name by the defendants is intentional to confuse the customers of the plaintiffs. Actual confusion having taken place, the plaintiffs are entitled to an injunction. 6. Mr. Kadam, learned Counsel for the defendants, has however, submitted that the Notice of Motion deserves to be dismissed on three preliminary grounds. Firstly the plaintiffs are guilty of misrepresenting the name of the defendants. A perusal of the title of the plaint would show that the word "Engineering" has been left out from the actual name of the defendants. Secondly the defendants are manufacturing the brakes and clutches since 1994. The plaintiffs did not come to Court till June, 1995. Thus they have to be non-suited on the ground of delay and laches. A perusal of the title of the plaint would show that the word "Engineering" has been left out from the actual name of the defendants. Secondly the defendants are manufacturing the brakes and clutches since 1994. The plaintiffs did not come to Court till June, 1995. Thus they have to be non-suited on the ground of delay and laches. Thirdly the plaintiffs took their chance and moved an application under section 22 of the Companies Act. The decision went against them. The plaintiffs challenged the said decision by way of a writ petition. The writ petition has been dismissed. A finding has been given in the order by which the writ petition has been dismissed to the effect that there is no similarity whatsoever between the name of the plaintiffs and the defendants. Therefore this Court would at least act with caution before coming to a different finding of fact on the same material. On merits the Counsel has submitted that the plaintiffs cannot claim any exclusive proprietary right in the word "Emco" in view of the history which has been narrated above. The trade mark in fact belongs to the old firm known as Murray and Company. The said trade mark continues to subsist in the name of Murray and Company. After the Emco Electricals Pvt. Ltd. Company was incorporated all the Companies of the Gandhi family were using the word 'Emco" in their corporate name. They are continuing to do so. This fact is admitted by the plaintiffs in paragraph 22 of the plaint. It is, however, sought to be explained away by saying that the use of the name Emco by the other Company is with relation to other products and, therefore, has no relevance. There is, according to the Counsel, no confusion in the minds of the customers. There can be no confusion for a number of reasons. Firstly the goods manufactured by the plaintiff and the defendant are highly sophisticated technical goods. These are purchased by Companies who themselves are engaged in highly technical industries. The goods are purchased only after a thorough investigation by experts. The customer is very discerning. The goods, therefore, cannot be said to be sold off the counter. Thus there is hardly any likelihood of confusion in the minds of the customer. Secondly the letters which have been produced to indicate confusion are of no evidentiary value. The goods are purchased only after a thorough investigation by experts. The customer is very discerning. The goods, therefore, cannot be said to be sold off the counter. Thus there is hardly any likelihood of confusion in the minds of the customer. Secondly the letters which have been produced to indicate confusion are of no evidentiary value. These kind of letters can be easily procured by any party in an action such as this. Thirdly, even if the letters are genuine they do not amount to confusion. A perusal of the letters clearly shows that they were just enquiries. No order has been placed with the defendants which ought to have gone to the plaintiffs. There is no evidence to suggest such confusion. In fact, the Notice of Motion, according to the Counsel, has been taken out of business rivalry. The plaintiffs are very well aware that whereas their name is distinctly known by the word "Lenze" the defendants are also distinctly know as "Precima". So the commonality of the prefix Emco cannot be raised to such an importance as to render the use of Lenze and Precima respectively without any value. The words Lenze and Precima are well known in the field in which the goods are sold as being the two West German Collaborators of the two firms. Thus there can hardly be any cause for confusion in the minds of any of the customers. It is further submitted by Mr.Kadam that under the Award all the assets have been put in common pool. Furthermore, it is submitted that at this stage no finding can be given as to the title of the name Emco. In any event the plaintiffs has himself confirmed that the trade name "Emco" is a common right of all the brothers. Reference in this connection is made to the letter written by C.D. Gandhi on 20th May, 1993 to all the brothers wherein he complains that the name Emco is being used by certain other persons also. He says that at least he has done his part to advertise the fact that Emco belongs to the Gandhi family. Even as late as 20th June, 1996 it is admitted by C.D. Gandhi that the trade names continued to be in the ownership of Murray and Company. He says that at least he has done his part to advertise the fact that Emco belongs to the Gandhi family. Even as late as 20th June, 1996 it is admitted by C.D. Gandhi that the trade names continued to be in the ownership of Murray and Company. In this letter he, therefore, suggests that any brother interested in a particular registered trade mark may take it over on paying goodwill to the rest of the partners of Murray and Company. In another letter dated 24th June, 1996 C.D. Gandhi again suggests that it is only fair that all other brothers who are using Emco name in their company pay a goodwill to the other brothers for the use of the same. In view of that it is submitted by Mr.Kadam that the plaintiffs can hardly claim exclusive proprietary rights in the name Emco. It is further submitted that admittedly trade name Emco is not registered. Then by virtue of section 38 (1) of the Trade and Merchandise Marks Act, 1958 the said name could not be assigned. Thus the plea put forward by the plaintiffs that the trade name has been assigned to them is wholly against the provisions of law. It is submitted that the perusal of the agreement dated 29th August, 1990 would show that the word "good will" is never used. The word trade mark is used. The words other benefits are used. The word goodwill is not used at any stage. Counsel submits that it is only a refinement on the part of the plaintiffs when it has been suggested in paras 10 and 11 of the plaint that goodwill has also been assigned. This otherwise could not be so as the earlier firm Emco Electricals Pvt. Ltd. is still continuing production of the goods. In any case in the affidavit in reply it has been specifically denied that the goodwill has been assigned along with the other assets of the Company. Counsel has also referred to affidavit in rejoinder filed by C.D. Gandhi to show that the denial made by the defendants has not been controverted in the rejoinder. In paragraph 17 of the rejoinder it is merely stated that "I deny that in view of the absence of assignment together with goodwill there is no valid assignment of unregistered trade mark in favour of the plaintiffs or their predecessors as alleged. In paragraph 17 of the rejoinder it is merely stated that "I deny that in view of the absence of assignment together with goodwill there is no valid assignment of unregistered trade mark in favour of the plaintiffs or their predecessors as alleged. This being so it is submitted by the Counsel that the plea put forward by the plaintiffs is false. In support of his submissions Counsel has referred to the Law of Passing-off by Wadlow, paragraph 7.20. This paragraph deals with rights of common origin. In this paragraph the author has given opinion that "It is suggested that where a name or mark was in use by a corporate group which has split then the question is whether the public continues to associate the name or mark with the former group or business as such or has come to associate it specifically with the plaintiff. If the former is the case, then there may be no misrepresentation and therefore no passing-off when the name or mark is used by a company sharing a common origin with the plaintiffs. " In the present case it is submitted that Murray and Company was the Original Company. Emco is being used commonly by all the companies and businesses of the Gandhi family. 7. Replying to the submissions of Mr.Tulzapurkar, Counsel has submitted that in the case of Optrex (supra) the names were identical. In the present case the names are not identical. They are distinct being "Emco Lenze" and "Emco Precima". 8. I have considered the rival submissions made by the Counsel for the parties. It has emerged from the pleadings that Murray and Company was established by the father of the five brothers. The five Gandhi Brothers were part and parcel of the family business, Murray and Company. This was subsequently incorporated in a Company known as Emco Electricals Pvt. Ltd., In 1975 this Company went into collaboration with a German Company by the name Lenze. On disputes having arisen and Award came to be passed on 23rd April, 1990. Thus the division of the assets of the business concerns of the Gandhi family was done by virtue of the agreement dated 29th August, 1990 executed in view of the Award dated 23rd April, 1990. A decree came to be passed in terms of the Award dated 23rd April, 1990. Emco Electricals continues to function. Thus the division of the assets of the business concerns of the Gandhi family was done by virtue of the agreement dated 29th August, 1990 executed in view of the Award dated 23rd April, 1990. A decree came to be passed in terms of the Award dated 23rd April, 1990. Emco Electricals continues to function. The two trade names are still in the name of Murray and Company. Emco is a acronym for Murray and Company. The word Emco is being used as prefix by all the concerns of the Gandhi family. The trade name Emco is still unregistered. There is no mention of the word goodwill in the deed of assignment. There are certain letters to show that the parties are making enquiries as to whether defendants are associated with Emco. The fact that the trade name is still in the name of Murray and Company cannot be brushed aside in view of the letters mentioned above. Keeping all the facts and circumstances in view I am of the considered opinion that the plaintiffs have failed to establish a prima facie case. The title to the word Emco being exclusively for the benefit of plaintiff cannot be a foregone conclusion at this stage. There are too many ponderables to suggest that Emco is reserved solely for the plaintiff. First of all there are so many other companies and firms of the Gandhi family prefixing their concerns as Emco. Secondly the trade name legally still remains with Murray and Company. Thirdly the plaintiffs filed an application under section 22 of the Act and the decision was given against them. This decision was challenged by the plaintiffs in the writ petition and order has been passed stating clearly that the two names are distinct. The said order may be reproduced for ready reference. "On comparison of both the names i.e. petitioner's and 3rd respondent's it is obvious that neither they are identical nor they too nearby resemble each other the impugned order it appears that the respondent has taken relevant factors into consideration. I do not find any infirmity in the impugned order. Petition rejected." Thus finding of fact has not been upset by the Appellate Court as yet. This being so it could not be said that the word Emco is the exclusive proprietary right of the plaintiff. I do not find any infirmity in the impugned order. Petition rejected." Thus finding of fact has not been upset by the Appellate Court as yet. This being so it could not be said that the word Emco is the exclusive proprietary right of the plaintiff. Since the very title of the plaintiff is in doubt it would be unnecessary to go into the other reasons as to why interim relief cannot be granted to the plaintiffs. However, since the matter has been heard at length I proceed to determine as to whether the plaintiffs have satisfied the other test. First of all about reputation. Except for the fact that the plaintiffs have put on the record the balance-sheet, there is no other proof of the fact that the word Emco is associated only with the plaintiffs. The only other proof is in the form of certain letters, the evidentiary value of which cannot be assessed at this stage. Thus I am not satisfied that the plaintiffs firm is the sole firm reputed with the word Emco in relation to the production of electrical brakes and clutches. The next question to consider as to whether there is any misrepresentation. It is to be seen that the word Emco is an acronym for Murray and Company. This name has been used not only by all the concerns of the Gandhi family but is being prefixed by some firms which are wholly unconnected with the Gandhi family. Even otherwise at this stage no evidence has been placed on the record to show that there is any effort on the part of the defendants to misrepresent. To the contrary the defendants have been meticulous in naming their concern as Emco Precima Engineering Pvt. Ltd., This is in distinction to the name of the plaintiffs Emco Lenze Pvt. Ltd. With reference to this, it is appropriate that more importance has to be paid to the distinction in the name rather than to the common expression. This view of mine finds support in the book on the Law of Trade Marks and Passing-off by P. Narayanan, Fourth Edition, paragraph 17.56 therein it is stated as follows. "17.41. Expressions having common words. Where trade marks composed of more than one word contain a common distinctive word the question whether they are deceptively similar is not easy to decide. "17.41. Expressions having common words. Where trade marks composed of more than one word contain a common distinctive word the question whether they are deceptively similar is not easy to decide. It may depend upon the relative emphasis and importance of the common word in relation to the mark as a whole. Where imperfect recollection is relevant what has to be considered is how far the additional word is significant to prevent the imperfect recollection and the resultant confusion. It is important to consider whether the two words forming the trade mark hold together as a phrase or present a wholly different meaning from the separate components. Where the common word is descriptive or commonly in use in the trade concerned, as a rule, less importance is attached to the resemblance arising solely from the presence of that common word. In such a case if there is no similarity in the remaining parts the chances of confusion may be remote." Clearly then the use of the word Lenze would distinguish the name of the defendant by the use of the word Precima. It must also be remembered that these are qualified expert and discerning customers. They would also be aware of the fact that the plaintiffs are in collaboration with Lenze and the defendants are in collaboration with Precima. Thus it can be safely held that there is no misrepresentation by the defendants either intentionally or otherwise. Damage can be proved to have been caused if certain customers have been confused or are likely to be confused. As stated earlier, there is hardly any likelihood of any of the customers of the plaintiff and defendant being confused. That being the position I am of the considered opinion that the plaintiffs have failed to make out a case for the wholesale injunction. Counsel for the plaintiff has then submitted that in any event they would be entitled to a limited injunction in that the defendants should be restrained from prefixing their corporate name with Emco so far as the electric brakes and clutches are concerned. This is claimed on the basis of the earlier judgements given in the cases of Parker, Thomas Somerville and Optrex (supra). I am unable to accept the submission made by the Counsel. This is claimed on the basis of the earlier judgements given in the cases of Parker, Thomas Somerville and Optrex (supra). I am unable to accept the submission made by the Counsel. In the case of Parker, an ex partner (defendant) was deliberately trying to take advantage of the reputation of the name "Parkers" even after he left the partnership. Even though the name of the defendant was Parker, he was restrained from styling his firm as "Parkers" so as not to confuse his firm with that of the plaintiffs. There was actual evidence of confusion. It was held that prima facie case of passing off has been made out. In the present case I have held that no prima facie case of passing off has been made out. Furthermore, the name of the plaintiffs and the defendants are distinct by the use of the names Lenze and Precima. Thus the observation made in Parkers would be of no assistance to the Counsel for the plaintiffs. In Somerville's case it was held that no other cigarette manufacturer shall use the trade mark Kaisar-i-Hind. There again the injunction was only with regard to the uses of the exact trade name Kaisar-i-Hind. Thus, therefore, this authority will again be of no assistance to the plaintiffs. In the case of Optrex again the injunction was only granted with respect to limited items but the main reason was that the words were again absolutely identical. The only distinction was between Optrex India Ltd., and Optrex Ltd. Thus the facts of that case are distinguishable from the present case. 9. In the present case there is an added factor that a Single Judge of this Court has given a finding that the two names are wholly distinct form each other. Thus at this stage it will not be possible to hold that there is any element of passing off on account of the use of the name Emco by the defendants in the prefix to their corporate name. 10. It is also to be noticed that although the Letters Patent Appeal has been admitted against the order of the Single Judge but no interim relief has been granted to the plaintiffs. At this stage Counsel for the plaintiffs submits that their application is still pending before the Registrar of Trade Marks. 10. It is also to be noticed that although the Letters Patent Appeal has been admitted against the order of the Single Judge but no interim relief has been granted to the plaintiffs. At this stage Counsel for the plaintiffs submits that their application is still pending before the Registrar of Trade Marks. He is apprehensive that the decision on the trade mark may be influenced by the observations made in this order. It is clarified that all observations made at the interim stage are of a tentative nature. They are never binding on any authority. I am sure the Registrar will decide the application for the registration of the trade marks applying his own independent mind. 11. In view of the above I find no merit in the Notice of Motion. The same is dismissed with no order as to costs. Motion dismissed.