JUDGMENT M. KARPAGAVINAYAGAM, J. - The plaintiffs filed the suit in C.S. No. 984 of 1999 to injunct the defendant from imitating/copying the plaintiff's trading style and trade mark 'IBS' by use of the identical name/trading style/ trade mark 'IBS' as part of the defendant's corporate name etc., and passing off the businesses, services and products of the defendant as that of the plaintiffs or as business, services or products connected/associated with the plaintiffs and also for allied reliefs. 2. Before the suit was filed, since the defendant is residing outside the jurisdiction of this Court, the plaintiffs filed Application No. 3799 of 1999 requesting to grant leave to sue the defendant before this Court. By the order dated 2-11-1999 this Court ordered notice to defendant/respondent. Accordingly, notice was served. However, the respondent neither appeared in person nor defended the same through the counsel. Therefore, this Court after hearing the counsel for the plaintiffs and perusing the records and the authorities placed before this Court, passed an order on 14-12-1999 granted leave to sue against the respondent and allowed the said application. 3. After the suit was numbered in C.S. No. 984 of 1999, this Court in this application in O.A. No. 796 of 1999 on basis of the documents produced before this Court found prima facie to grant interim injunction restraining the defendant/respondent from using the trade name and trading style 'IBS' or IBS Technologies and passing off of the respondent's business goods or services as that of the plaintiffs' products and services until further orders of this Court pending suit. The applicants were also directed to send the private notice by complying with the Order 39, Rule 3 of Civil Procedure Code Accordingly, after service of notice, the plaintiffs/applicants filed an affidavit of compliance under Order 39, Rule 3, Civil Procedure Code before this Court. At this time, on service of the notice, the documents and the copy of the interim order, the defendant/respondent has rushed to this Court and filed a counter-affidavit dated 17-1-2000 requesting to dismiss the interim application as well as the suit on raising various points including the question of jurisdiction of this Court stating that there is no cause of action at Chennai to enable this Court to entertain the suit. 4. Mr. U. N. R. Rao, the learned senior counsel representing M/s. Kurian and Kurian Associates appearing for the plaintiffs/applicants and Mr. 4. Mr. U. N. R. Rao, the learned senior counsel representing M/s. Kurian and Kurian Associates appearing for the plaintiffs/applicants and Mr. Muralidharan, the learned counsel for the defendant/respondent would argue at length when the matter was heard on various dates. 5. Let us now refer to the facts, culled out from the affidavits and documents filed by both the parties, that are relevant and required to have the full understanding of the case as well as the questions that arise in this case, which are as follows : "(a) International Business Services Group Private Limited, Trivandrum is the first plaintiff which is incorporated under the Companies Act. V. K. Mathews, the second plaintiff is responsible for setting up and developing the business of the first plaintiff-Company. The second plaintiff in early 1995 started business under the name of the International Business Services Group (IBS) in Jumeira, Dubai, U.A.E. (b) The second plaintiff using the trading style 'IBS' is dealing in Computer Softwear Development Services. In 1995 and 1996 he contacted various people in India and obtained suitable space for locating the Offshore Software Development Centre. In the meantime, he had detailed discussion with the Swissair Group and Emirates Group from mid-1995 and commenced the arrangement for entering into a long term agreement for supply of Software Services for their Group. (c) Due to the efforts of the second plaintiff, the trading style 'IBS' as signifying business of the second plaintiff was well known in India and abroad by the end of the year 1995. For the purpose of expansion and continuity, on 23-9-1996 the second plaintiff formed the first plaintiff-Company under the trading style 'IBS'. By October 1999, the business premises of the first plaintiff was inaugurated with the contracts already in hand and being processed for Global Computer Software Development Services at Trivandrum, by the Hon'ble Chief Minister of Kerala with wide publicity all over India. (d) In course of time, the first plaintiff under the trading style 'IBS' has become well known in India and abroad, having tie ups with major global clients. The first plaintiff had a turnover of Rs. 8 crores in the first year and a substantial increase to Rs. 12 crores in the very next year. (d) In course of time, the first plaintiff under the trading style 'IBS' has become well known in India and abroad, having tie ups with major global clients. The first plaintiff had a turnover of Rs. 8 crores in the first year and a substantial increase to Rs. 12 crores in the very next year. (e) At this stage, the plaintiff received a news that the defendant-Company was carrying on a similar business of Computer Software Development Services under the name of 'IBS' Technologies Private Limited at Bangalore. On getting the investigation report from a private Agency, the plaintiffs/ applicants came to know that the defendant Company originally formed under the name 'Info Bank Systems Private Limited in 1996 and Changed its name to 'IBS' Technologies Private Limited on 19-12-1997, which is well after the time when the trading style of the applicants namely, 'IBS' had been used and heavily published all over India in connection with the plaintiffs' business of Computer Software Development Services. (f) Immediately thereafter, the plaintiffs/applicants sent a lawyer notice to the defendant/respondent calling upon them to cease and desist from the use of the trading style/trade mark 'IBS'. The defendant/respondent sent a reply notice through lawyer stating that there would be no confusion and that there is no requirement for them to stop use of the said trade name 'IBS'. (g) The defendant/respondent after sending the reply notice, filed a civil suit before the City Civil Court at Bangalore against the first plaintiff for injunction to prevent the first plaintiff from filing any suit against the defendant/respondent in Chennai or Trivandrum and for declaration that the threats through the lawyer notice are unjustified. That apart, he also filed an application for registration of the trade mark 'IBS' before the Registrar of Trade Marks at Chennai. (h) Under these circumstances, the plaintiffs have approached this Court and filed the suit and interim application as referred to above. 6. Let us now refer to the submissions made by counsel on either side. 7. Mr. U. N. R. Rao, the learned senior counsel appearing for the plaintiffs/applicants would submit as follows : "(i) The plaintiffs operating under the trading style 'IBS' have been carrying on business and providing Computer Software Development and other connected services in the Information Technology Industry. They have long term business arrangements with the Swissair Group of Switzerland and Emirates Group of Dubai. They have long term business arrangements with the Swissair Group of Switzerland and Emirates Group of Dubai. They are also in process of finalisation of long term contracts for extended Software Development facility for the other famous Companies such as Arthur Anderson, the largest consulting Company in the world and United Bank of Switzerland, the largest Bank in the world. (ii) Three letter trading styles have become highly distinctive and well reputed in India and all over the world. The examples of well known Indian and Multi-national Companies using such distinctive trading styles/marks are BBC, HMV, IOB, TVS, WHO, IBM, LIC, TTK, ABT, etc. The adoption and popularisation of such three letter trading styles has become an established trade practice, as a result of which the first adopter and user develops goodwill and reputation in connection with such trading style. Therefore, the adoption of such similar trading style cannot be permitted by the new organisation, as the same would result in confusion and deception among the trade and public and passing off of the business services and products of the latter adopted as that of them or connected/associated with the earlier adopter and user. (iii) Within a short time, the business under the trading style 'IBS' started by the plaintiffs had a turnover of Rs. 8 crores in the first year and Rs. 12 crores in the next year and as per the business plans, the annual revenues would grow to Rs. 100 crores and the Company would employ 600 Software Engineers in the next three years. At this stage, the plaintiffs received information that the defendant at Bangalore, is carrying on a similar business of Computer Software Development Services using the same trade name as IBS Technologies Private Limited. They have been using the name 'IBS' in respect of the same field of providing Computer Software Development Services. Thus, the defendant by using and passing off of the name 'IBS' is attempting to encash upon the goodwill and reputation of the plaintiffs through confusion and deception. Hence, the plaintiffs are entitled to the interim injunction. (iv) The suit is maintainable because the defendant has filed application for registration of the trade mark in Chennai. This point was already decided by this Court, while granting leave by the order dated 14-12-1999, on service of the notice on the defendant. Therefore, that order becomes final." 8. On the other hand, Mr. (iv) The suit is maintainable because the defendant has filed application for registration of the trade mark in Chennai. This point was already decided by this Court, while granting leave by the order dated 14-12-1999, on service of the notice on the defendant. Therefore, that order becomes final." 8. On the other hand, Mr. Muralidharan, the learned counsel for the defendant/respondent would make the following contentions : "(i) The plaintiffs are not entitled for the continuance of the injunction, since they have not placed the true facts before this Court. Even before they filed the suit before this Court, the defendant, the respondent herein filed a suit in O.S. No. 3615 of 1999 on the file of the City Civil Court, Bangalore. The plaintiffs earlier sent a legal notice for which suitable reply was sent by the defendant. The suit documents as well as these notices have not been placed before this Court, even though they entered appearance through the counsel before the said Court. Since a suit is pending before the City Civil Court, Bangalore, the issue has to be decided on by the said Court and not by this Court. (ii) The defendant is a Company established under the Companies Act. The Registrar of Companies has given the defendant the name of IBS Technologies Private Limited. Therefore, the defendant's use of the name and the brand "IBS" is a bona fide use, which is protected under Section 34 of the Trade and Merchandise Marks Act. (iii) Unless it is established that the adoption of the same brand by the defendant has caused irreparable loss, the injunction cannot be granted. Furthermore, the customers of the parties to the suit are knowledgeable a lot and therefore, there is no possibility of any confusion at all. In the absence of any material to show that there is any actual deception or any actual damage being caused, no injunction would be granted. (iv) That apart, since no part of cause of action arose at Chennai, this Court will not have any jurisdiction to try this suit. Section 110 of C.P.C. also would be a bar to continue the proceedings pending before this Court, when the suit filed by the defendant, the respondent herein is pending before the City Civil Court, Bangalore. If the injunction granted is not vacated, comparatively the defendant/respondent would be put to more loss and hardship. Section 110 of C.P.C. also would be a bar to continue the proceedings pending before this Court, when the suit filed by the defendant, the respondent herein is pending before the City Civil Court, Bangalore. If the injunction granted is not vacated, comparatively the defendant/respondent would be put to more loss and hardship. Therefore, the suit as well as the application has to be dismissed." 9. In the light of the arguments advanced by the counsel for the parties, this Court is called upon to decide whether the interim injunction earlier granted by this Court dated 22-12-1999 is to be made absolute or not or the interim application is to be dismissed on the ground that there was no prima facie case made out also on the ground regarding the maintainability of the suit. 10. Even at the outset, it is better to mention that the question relating to the jurisdiction over the point of cause of action has already been decided by this Court, as correctly pointed out by the learned senior counsel appearing for the plaintiffs, by the order dated 14-12-1999. Though the respondent was not heard in the said application, this Court passed an order giving detailed reasons holding that this Court has got jurisdiction, as part of the cause of action arose at Chennai, only after service of notice on the respondent and thus, the order has become final and the same cannot be re-agitated before this Court. 11. Even as regards Section 10 of Civil Procedure Code, I am not able to find any merit in the contention and the counsel for the respondent, as it is settled law that Section 10 Civil Procedure Code would not apply to the present stage, as held in B. V. Sulanke v. K. P. Kadarappa (AIR 1974 Mysore 63.), and Sujanbai v. Motiram (AIR 1980 Bombay 188.). Therefore, these contentions urged by the learned counsel for the respondent would fail. 12. Having regard to the other main issue to be decide in this case, it is relevant, at this stage, to quote the various authorities cited by the learned senior counsel appearing for the plaintiffs, dealing with question relating to the right of the parties to restrain the use of a particular name in carrying on business and the materials required to make out a prima facie for granting injunction. The decisions are as follows : (1) Ruston and Hornby Limited. v. Zamindara Engineering Company ( AIR 1970 SC 1649 .). (2) Century Traders v. Roshanlal Duggar & Company (AIR 1978 Delhi 250.). (3) Millington v. Fox (40 E.R. 956 L.C.). (4) M/s. Jawahar Engineering Co. v. M/s. Jawahar Engineers Pvt. LTD. (1983 PTC 207.). (5) Power Control Appliances v. Sumeet Machines Pvt. Ltd. (1995 PTC 165 (SC) = 1995 (Suppl.) Arb. LR 1 (SC).) (6) Metro Playing Card Co. v. Wazir Chand Kapoor (1982 PTC 221.). (7) Consolidated Foods Corporation v. Brandon and Company (AIR 1965 Bombay 35.). (8) Ellora Industries v. Banarasi Dass (AIR 1980 Delhi 254.). (9) Montari Overseas Limited v. Montari Industries Limited (1996 PTC 142.). (10) Dolphin Laboratories v. Kaptab Pharmaceuticals (AIR 1981 Calcutta 76.). (11) M/s. K.G. Compressors Limited v. M/s. K.E. Limited (AIR 1986 Delhi 181.). English Cases : 12. Buttercup Dairy Co. v. Buttercup Margarine Co. (1917(34) RPC 232.). 13. Gandy Belt Mfg. Co. Ltd. v. Fleming Birkby and Goodall Ltd. (1901(18) RPC 276.). 14. Birmingham Small Arms Co. Ltd. v. Webb & Co. (1907(24) RPC 27.). 13. On a perusal of these judgments it is seen that the following principles would emerge regarding the point in issue, which could be categories in the following manner : "(1) A trader acquires a right of property in distinctive mark merely by using it upon or in connection with his goods irrespective of the length of such user and the extent of his trade. The trader who adopts such a mark is entitled to protection directly the article having assumed a vendible character is launched upon the market. Registration under the statute does not confer any new right to the mark claimed. The trade mark exists independently of the registration which merely affords further protection under the statute. Priority in adoption and use of a trade mark is superior to priority in registration. (2) For the purpose of claiming such proprietorship of a mark, it is not necessary that the mark should have been used for a considerable length of time. It is sufficient if the article with the mark upon it has actually become a vendible article in the market with intent on the part of the proprietor to continue its production and sales. It is sufficient if the article with the mark upon it has actually become a vendible article in the market with intent on the part of the proprietor to continue its production and sales. (3) The purpose of tort of passing off is to protect commercial goodwill; to ensure that people's business reputations are not exploited. It is thus complimentary to trade mark law which is founded upon statute rather than common law. There is a difference between statute law relating to trade marks and the passing off action; for, while registration of relevant mark, itself gives title to the registered owner, the onus in a passing off action lies upon the plaintiff to establish the existence of the business reputation which he seeks to protect. Thus, the plaintiff must establish that his business or goods have acquired the reputation he alleges. This can be done by showing a substantial portion of people who are likely to become purchasers of the goods of the kind in question associate the name with them. The weight of this burden would vary according to the facts. However, the plaintiff need not establish fraud, nor that any one was actually deceived, or that he actually suffered damage. Loss of sales is not the only form of probable injury that will suffice, loss of reputation has been accepted as sufficient. Law protects all intangible elements of value. (4) The trend of judicial opinion is that reputation or goodwill in business generally attaches with the trade name adopted by a party. Such reputation or goodwill would be protected by the Court. Copyright of the name by a competitor is likely to cause an injury to its business. If a person uses a name which is likely to deceive and divert the business of someone else to him or is likely to cause confusion in the mind of the persons likely to deal with such competing business, then the impugned action or intended action would be prevented by the Courts on the same principles which are applicable to ordinary cases of passing off relating to the sale of goods. Innocence of the defendant is no defence. The law applies with more rigour when the defendant is an inanimate person such as a company and when name consists of a coined word. Innocence of the defendant is no defence. The law applies with more rigour when the defendant is an inanimate person such as a company and when name consists of a coined word. (5) While adopting a particular name as the trade name for a business, a person is required to act honestly and bona fidely and not with a view to cash upon the goodwill and reputation of another. Normally, a company cannot adopt a name which is being used by another previously established company. As such, a name would be undesirable in view of the confusion which it may cause or is likely to cause in the minds of the public. Use of a name by a company can be prohibited if it has adopted the name of another company. (6) No company is entitled to carry on business in a manner so as to generate a belief that it is connected with the business of another company. The same principle of law which applies to an action for passing off of a trade mark will apply more strongly to the passing off of a trade or corporate name of one for the other. Likelihood of deception of an unwary and ordinary person in the street is the real test and matter must be considered from the point of view of that person. Copying of a trade name amounts to making a false representation to the public from which they have to be protected. Besides the name of the company acquires reputation and goodwill, and the company has a right too to protect the same. A competitor cannot usurp the goodwill and reputation of another. One of the pernicious effects of adopting the corporate name of another is that it can injure the reputation and business of that person. (7) There are two distinct classes of rights in respect of the name of a business; the first one arises when that name or some part of it, whether it be what is known as a fancy word, an ordinary word or a geographical name, has come to mean the goods of, or to connote the skill, probity or excellence of the particular business. The other class of right is to be distinct name, that is the right to prevent others from adopting a name which is likely to lead the public to mistake another new business for the plaintiff's business. Where there is probability of confusion in business, an injunction will be granted even though the defendant adopted the same name innocently. (8) It is settled law that a registered company can be restrained being registered with a name similar to that of another registered company. There is considerable case law showing that a company can also be restrained from being registered in the name of an unregistered firm. There is also case law to indicate that if the Company has already been registered, it can be restrained from carrying on business in the registered name. (9) Use of the defendant-company's name was either calculated to deceive and so divert business from plaintiff to defendant company or to occasion a confusion between the businesses. The probability of confusion between the two companies both being connected with the same industry is sufficient to entitle the plaintiff to relief of injunction." 14. In the light of the above principles, if the present facts are analysed in the proper perspective, in my view, the plaintiffs/applicants would be entitled to the relief sought for, as there is a prima facie case to make the order of interim injunction already granted by this Court absolute. 15. To arrive at such a conclusion, the following are my reasonings : "(1) According to the plaint and the affidavit, the second plaintiff in early 1995 started business under the name of International Business Services Group (IBS) at No. 2, Safa Village, Jameira, Dubai, U.A.E. and he has been using the trade style 'IBS' for this business dealing in Computer Software Development Services. The second plaintiff operating under the trading style 'IBS wrote to several persons in India and abroad with regard to the above business. He had also arranged for entering into long term arrangements for supply of Software Services to the 'Swissair' Group in Switzerland and Emirates Group in Dubai. He also contacted the Technopark, Trivandrum through Document No. 1, the letter dated 9-10-1995 requesting to arrange for the 'IBS' project to set up an Offshore Software Development Centre at Trivandrum. He had also arranged for entering into long term arrangements for supply of Software Services to the 'Swissair' Group in Switzerland and Emirates Group in Dubai. He also contacted the Technopark, Trivandrum through Document No. 1, the letter dated 9-10-1995 requesting to arrange for the 'IBS' project to set up an Offshore Software Development Centre at Trivandrum. In the said letter, the second plaintiff informed Technopark that the 'IBS' is an advanced stage of reaching an agreement with a large customer, based in Zurich, Switzerland. The document No. 2, the letter dated 16-10-1995 sent by Chief Executive Officer of the Technopark intimating the conclusive atmosphere and the arrangements for the funding through various financial institutions also would show that the plans for setting up of a project in the name of trade mark 'IBS' in Trivandrum dealing in Computer Software Services to fulfil the terms of the contract entered into between the second plaintiff and the other Companies at abroad. By December, 1996 the 10 year agreement with the Swissair Group was executed. By October, 1997 the business premises of the first plaintiff at a large area about 8.000 sq. ft. facility was inaugurated. The function was presided over by the Chief Minister of Kerala. It was widely published. In the year 1998 the first plaintiff executed the Emirates Group contract and in 1999, he signed the contract for providing Software Services to the Zurich Airport. Within one year the trading style 'IBS' has become well known in India and abroad. It had a turnover of Rs. 8 crores in the first year and a substantial increase to Rs. 12 crores in the very next year. The document Nos. 3 to 35 and 37 to 41 covering the dates from 5-6-1997 to 6-10-1999, various articles and news published in the various famous Newspapers relating to the plaintiffs' business would show that the plaintiff-company gained reputation and goodwill within a short time. The document No. 35 dated 23-4-1999 which is Employment NRI Times Newspaper contains details of the interview given by the second plaintiff to the Editor of the said publication. In the said document, second plaintiff has given various details about the establishment of 'IBS' and the particulars giving the services to large international clients in Europe and North America. The document No. 35 dated 23-4-1999 which is Employment NRI Times Newspaper contains details of the interview given by the second plaintiff to the Editor of the said publication. In the said document, second plaintiff has given various details about the establishment of 'IBS' and the particulars giving the services to large international clients in Europe and North America. He would also state that 'IBS' Offshare Software Services from India have been recognised by leading successful corporations worldwide as a cost-effective way of supporting their global operations. According to him, 'IBS' has aggressive growth plans and the present rate of growth is 70 per cent and is excepted to grow significantly over the coming years and the same is established to provide Computer Development Services to India as well as to large international clients. A perusal of all the documents would show that the business has picked up and gained the goodwill and reputation in India as well as at abroad. These things have not been denied either in the counter or in the oral submissions made by the learned counsel for the respondent. (2) As rightly pointed out by the learned senior counsel for the plaintiffs, three letter trading styles like BBC, MRF, HMV, etc. have become famous and well reputed. Thus, the adoption of such three letter trading style has become an established trade practice. It cannot be denied that the first adopter and user develops goodwill and reputation in connection with such trading style and once the goodwill and reputation gained, any other organisation cannot be permitted to use the same trading style, as the same would result in confusion and deception among the trade and the public. In the present case, the defendant Company was originally named as Info Bank Systems Private Limited. It was incorporated on 6-3-1996. When the International Business Service Group (IBS) was inaugurated at Trivendrum or when the first plaintiff-Company was formed by the second plaintiff on 23-9-1996 and when it was inaugurated in October, 1997 by using the name of 'IBS', admittedly, the defendant-company's name was Info Bank Systems Private Limited. The document No. 42 which is Search Report of records at the Registrar of Companies, Bangalore produced by the plaintiffs would show that the Info Bank Systems Private Limited has been renamed as IBS Technologies Private Limited only on 19-12-1997. The document No. 42 which is Search Report of records at the Registrar of Companies, Bangalore produced by the plaintiffs would show that the Info Bank Systems Private Limited has been renamed as IBS Technologies Private Limited only on 19-12-1997. This is long after the time when the trading style 'IBS' had been used by the plaintiffs and heavily published in India in connection with the plaintiffs' business of Computer Software Development Services. It is submitted by the counsel for the respondent that it is not a rename, but it is only initials of the words of the original name. This contention does not merit acceptance, since the present name is IBS Technologies Private Limited and the original name is Info Bank Systems Private Limited. If the initials are to be used, the defendant could have used IBST Private Limited instead of IBS Technologies Private Limited. But the fact remains that the name 'IBS' has been used by the defendant who is dealing the same business only after the wide publicity given by the plaintiffs and only after the plaintiffs gained reputation in his business in India as well as at abroad. Moreover, there is no explanation given for such a change of name which was obtained by applying for the same before the Registrar of Companies, Bangalore. (3) Yet another significant factor is that according to the information available to the plaintiffs, the defendant claims to have another company incorporated and registered under the Companies Act, 1956 under the name IBS Software Services Private Limited. But actually, there appears to be no such registered company. This is not specifically denied by the defendant. Furthermore, it is contended by the senior counsel appearing for the plaintiffs that the defendant is using the words 'IBS' in its internet domain name/website address and is making available to computer users in Chennai and all over the world information about the defendant-company and its services and interacting with such persons, using the name 'IBS Technologies'. Document No. 36 dated 16-6-1999 which is the defendant's advertisement in Times of India also would support this contention of the learned senior counsel appearing for the plaintiffs. Document No. 36 dated 16-6-1999 which is the defendant's advertisement in Times of India also would support this contention of the learned senior counsel appearing for the plaintiffs. Under those circumstances, it cannot be disputed that the members of the public are likely to infer from the defendant's use of the name which is the name of the plaintiffs/applicants that the business of the defendant-Company is from the same source or both these Companies are connected together. As observed by the Apex Court in 1995 PTC 165 (supra), "It is settled principle of law relating to trade mark that there can be only mark, one source and one proprietor and it cannot have two origins." (4) If a person uses a name which is likely to deceive and divert the business of some one else to him or is likely to cause confusion in the mind of the persons likely to deal with such competing business, then the action of the defendant of the passing off would be prevented by the Courts. In that context, either innocence or the bona fide use under Section 34 of the Trade and Merchandise Marks Act cannot at all be the defence. It is well settled that no company is entitled to carry on business in a manner so as to generate a belief in the minds of public that it is connected with the business of another company. As pointed out earlier, the Courts have held, where there is probability of confusion in business, an injunction will be granted even though the defendant adopted the same name innocently. (5) The following is the extract of P. Narayan's Law of Trade Marks and Passing Off : "Knowingly violating another's right. "The question of fraud depends upon whether a person with knowledge has done that which he must known was calculated to injure his neighbour. It is not necessary that a person should sit down and say to himself. 'I propose to defraud my neighbour', but if a man of common sense and intelligence, knowing his neighbour's right, sets to work to do things which are necessarily calculated to injure him, he must to be must be taken to be guilty of fraud, that is to say, of knowingly injuring his neighbour-knowingly violating his neighour's rights by some false pretence. Fraud is infinite in variety; sometimes it is audacious and unflushing; sometimes it pays a sort of homage to virtue, and then it is modest and retiring; it would be honestly itself if it could only afford it. But fraud is fraud all the same, and it is the fraud, not the manner of it, which calls for the interposition of the Court." (6) Though details have not been given as to the amount of damage caused, in view of the settled position of law, as indicated earlier, proof of actual damage or fraud is unnecessary in the passing off action, especially if there is a likelihood of the offending trade mark invading the proprietary right over the trading name. Mere failure to produce materials to show fraudulent intention in the use of the trade marks would not deprive the plaintiffs of their right to the exclusive use of the trading name. In the present case, the sudden change of the name into 'IBS' in December 1997 in the absence of any explanation, that too, after the plaintiff's reputation gained considerably after two years, would not indicate that the defendant is a bona fide user of the trading name 'IBS'. Whatever it may be. The materials available on record clearly show that the plaintiff-company had gained reputation and goodwill in the trading name from 1995 onwards and being the first adopter and user, he would be entitled to have the exclusive right for using the same and to request this Court stating to injunct the defendant/respondent who is dealing in the same business, from using the trade name 'IBS' and from passing off of services. 16. In view of the foregoing discussion, I deem it appropriate to make the interim injunction absolute. Accordingly, the application is allowed. Application allowed.