K. S. Gupta, J. ( 1 ) SUIT was filed seeking to restrain the defendant permanently from using thewebsite under the name of WWW. MUTUAL FUND INDIA. COM or in any otheridentical name, inter alia, alleging that plaintiff No. 2 acquired the proprietory rights ofwww. MUTUAL FUNDS INDIA. COM and assigned it in favour of plaintiff No. 1-company. Website WWW. MUTUAL FUNDS INDIA. COM was created on 5/05/1999. It is alleged that this website provides most comprehensive data on mutualfunds. Finding it to be highly informative, knowledgeable and useful the Templetonmutual Fund, DSP Merill Lynch Mutual Fund, Kotak Mahindra Mutual Fund, Alliancecapital Mutual Fund and Taurus Mutual Fund are advertising on the said website. Prudential ICICI Mutual Fund has also agreed to advertise for one year beginning 1/05/2000. SIDBI Venture Capital Co. Ltd. , has offered to participate in the sharecapital of Plaintiff No. 1 to the tune of Rs. 1. 5 crores. Other leading companies ofnorth India dealing in shares, securities and debentures too have approachedplaintiff No. 1 for investing in its share capital. ( 2 ) IT is pleaded that eleven member team of FORBES, a magazine of USA haslisted 150 sites as best of Web after considering 1500 websites all over the worldand the plaintiffs said website is one amongst four indian websites included in thatlist. The defendant has fraudulently and mischievously developed websites withalmost identical name - WWW. MUTUAL FUND INDIA. COM deleting alphabet s after the word FUND. It is alleged that the unwary persons from Trade, Industry,commerce and Investors are likely led to believe that the said website of defendantwhich has practically no information is that of the plaintiffs. The plaintiff No. 1 calledupon defendant to change the name of its website through the letter dated 2 5/03/2000 Directors of plaintiff NO. 1 - company also spoke to the directors of defendant to change the name but to no effect. ( 3 ) IN the suit. IA No. 3708/2000 under Order XXXIX, Rules 1 and 2 read with Section151 Civil Procedure Code was also filed by the plaintiffs for issue of ad interim injunction seeking torestrain the defendant from running of the website under the said name WWW. MUTUAL FUND INDIA. COM or in any other deceptively similar name. ( 4 ) WHEN the case was taken up on 2/05/2000, Sh. MUTUAL FUND INDIA. COM or in any other deceptively similar name. ( 4 ) WHEN the case was taken up on 2/05/2000, Sh. Rahul srivastava, Advocateput in appearance and stated that he has instructions to appear on behalf of thedefendant and sought time for filing written statement and reply Accordingly, defendantwas allowed three days time for filing written statement and reply and the case waspostponed to 8/05/2000 for hearing on said IA. Defendant has filed reply only on 6/05/2000. ( 5 ) IN short, it is alleged in the reply that the MUTUAL FUND is a descriptive/genericword and no monopoly can be claimed relation thereto by any person. The documentsfiled alongwith The plaint do not indicate the name of owner of website WWW. MUTVAL FUNDS INDIA. COM. on the date the defendant applied for registration ofthe domain name in question, it was not even aware of the existence of the plaintiffs. The plaintiffs are a new company in existence for less than one year. The defendanthas been in existence for more than six years and has an enviable track record in thecorporate finance and allied services with a very impressive list of clientele. Plaintiffssaid domain name was registered six to seven months prior to the registration of thedefendant s above name Defendant s website is still under construction. It is statedthat as a part of its business development programme, the defendant planned aseries of websites on financial services and M/s. First Online Ltd. , was incorporatedin 1996 by the defendant in collaboration with Thapar Group. Sites already launchedby the defendant are being managed by M/s. First online Ltd. , under licence from thedefendant. Names of some of the websites for which the defendant has registereddomain names have been disclosed in para No. XXVI of the preliminary submissionsof the reply. It is denied that the plaintiffs at any point of time spoke to any of thedirectors of defendant, as alleged. Letter dated 25/03/2000 or any other letteras notice was never received by the defendant. It is asserted that there is no questionof the public associating the word MUTUAL FUND with that of the plaintiffs, asalleged. ( 6 ) IT was urged by Sh. Vinay Bhasin, Sr. Advocate appearing for the plaintiffs thatadmittedly plaintiff No 1 - company has been using the domain name of WWW. MUTUAL FUNDS INDIA. COM, six or seven months prior to the use of trade name- ofwww. ( 6 ) IT was urged by Sh. Vinay Bhasin, Sr. Advocate appearing for the plaintiffs thatadmittedly plaintiff No 1 - company has been using the domain name of WWW. MUTUAL FUNDS INDIA. COM, six or seven months prior to the use of trade name- ofwww. MUTUAL FUND INDA. COM. by the defendant and this use of name by thelater is likely to deceive or cause confusion and divert the business of the plaintiffs tothe defendant and the plaintiffs are, therefore, entitled to the ad interim injunctionprayed for. In support of the submission reliance was placed on the decisions inyahoo Inc. Vs. Akash Arora, 1999 PTC (19) 201 rendered by this Court andrediff Communication Umited Vs. Cyberbooth and Anr. , AIR 2000 Bom 27 . On the other hand, it was contended by Sh. A. S. Chandhiok, Sr. Advocate for thedefendant that the said domain name of plaintiffs is completely descriptive/generic innature and they are thus not entitled to the interim protection prayed for. Reliance wasplaced on the decisions in Office Cleaning Services, Ld. Vs. Westminster Windowand General Cleaners Ld. , LXIII RPC 39, J. R. Kapoor Vs. Micronix India, 1994supp. (3) SCC 215, Lloyd Insultations (India) Limited Vs. Punj Lloyd Insulationspvt. Ltd. , 1999 PTC 449 , Bharathiya Coffee Workers Catering Services (P) Ltd. Vs. Indian coffee Workers Coop. Society Ltd. , 1999 PTC 431 and an unreportedjudgement of Bombay High Court in Investmart India Ltd. , Vs. /c/c/ Ltd. and Anr. ,dated 10/03/2000. ( 7 ) PASSING off action is a Common law remedy. In Office Cleaning Services case (supra), the trade name of plaintiffs/appellants was "office Cleaning Services, Ld. "while that of defendants/respondents "office Cleaning Association". The questionwhich arose for determination before the House of Lords in appeal was-have theappellants proved that use by the respondents of trading style "office Cleaningassociation" was calculated to lead to the belief that their business was the businessof the appellants. While dealing with that aspect of the matter at page 42 of the report,it was held :- "in the present case there are certain considerations to which I think it worthwhile to call particular attention. Foremost, I put the facts that the appellants chose to adopt as part of theirtitle the words "office Cleaning" which are English words in common use, aptand more apt than any other words to describe the service that they render. Foremost, I put the facts that the appellants chose to adopt as part of theirtitle the words "office Cleaning" which are English words in common use, aptand more apt than any other words to describe the service that they render. This is a trade name, not a trade mark, case, but I would remind yourlordships of the close analogy between the two classes of case found byfarwell J. , in Aerators Limited Vs. Tollitt ([1902] 2 Chancery 319) and byparker, J. , in the Vacuum Cleaner case (ubi supra ). So it is that just as in thecase of a trade mark the use of descriptive words is jealously safeguarded,so in the case of trade names the Courts will not readily assume that the useby a trader as part of his trade name of descriptive words already used byanother trader as part of his trade name is likely to case confusion and willeasily accept small differences as adequate to avoid it. It is otherwise where afancy word has been chosen as part of the name. Then it is that fancy wordwhich is discriminatory and upon which the attention is fixed, and if anothertrader takes that word as part of his trade name with only a slight variation oraddition, he may well be set to invite confusion. For why else did he adopt it?thirdly, your Lordships will note that the Appellants do not claim that thewords "office Cleaning" have acquired a secondary meaning by which Iunderstand them to mean that they do not claim that these words mean aservice of cleaning officers as rendered by them and them alone. Such aclaim would indeed be impossible to maintain, But, While making this disclaimer,they nevertheless contend that as a trade name "officers cleaning" is somuch identified with their business that any trader who ventures to use thesewords as part of his trade name must clearly differentiate. This seems to meto be no more than a restatement of the familiar problem. The -Court willundoubtedly take into consideration long user of a descriptive name but willnot forget that, since it is descriptive, small differences may suffice. This seems to meto be no more than a restatement of the familiar problem. The -Court willundoubtedly take into consideration long user of a descriptive name but willnot forget that, since it is descriptive, small differences may suffice. These, my Lords, are the broad considerations which must govern this caseand, as it is succinctly stated in the judgement of the Court of Appeal, "thequestion to be determined" is narrowed down to whether the word association when used in connection with the "descriptive words office cleaning issufficient to distinguish the Defendants title from "that of the Plaintiffs officecleaning Services Ltd. " My conclusion agrees with that of the Court ofappeal. The distinctive word in the Appellants title. is "services", that in therespondents is "association" I think that that is a differentiation which shouldavert any confusion that might otherwise arise from the common use ofordinary descriptive words. " ( 8 ) AT page 43 of the report, it was further held :- "it comes in the end, I think, to know more than this, that where a traderadopts words in common use for his trade name, some risk of confusion isinevitable. But that risk must be run unless the first user is allowed unfairly tomonopolise the words. The Court will accept comparatively small differencesas sufficient to avert confusion. " ( 9 ) IN J. R. Kapoor s case (supra), injunction had been granted against the defendantfrom using the trade mark microtel . The plaintiff s mark was micronix . While settingaside the order of injunction, the Supreme Court held:- "thus micro-chip technology being the base of many of the products theword micro has much relevance in describing the products. Further, theword micro being descriptive of the micro technology used for production ofmany electronic goods which daily come to the market, no one can claimmonopoly over the use of the said word as a prefix to his trade name. What isfurther, these who are familiar with the use of electronic goods know fully welland are not likely to be misguided or confused merely by, the prefix micro inthe trade name Once, therefore, it is held that the word micro is a common orgeneral name descriptive of the products which are sold or of the technologyby which the products are manufactured, and the users of such products are,therefore, not likely to be misquided or confused by the said word. " ( 10 ) IN Bharathiya Coffee Workers Catering Service (P) Ltd. s case (supra), thecompeting trade names were Indian Coffee House. The plaintiff claimed that nobodyelse can use that name. Learned Single Judge of Kerala High Court dismissed thesuit on merits holding that the said name was descriptive in nature and there could beno monopoly over the same by the plaintiff despite use thereof by it for over 26 years. ( 11 ) LIKEWISE is the view taken in the remaining two decisions referred to above asregards legal position on use of trade name of descriptive natue. ( 12 ) WORD mutual FUNDS forming part of the plaintiffs domain name of WWW. MUTUALFUNDS INDIA. COM. is the description of the character of the servicesoffered by it. The material placed on record by the plaintiffs prima facie falls short ofindicating that the aforesaid word has acquired a secondary meaning which is a precondition for granting protection to a descriptive name. Considering the ratio of theaforementioned decisions relied on behalf of the defendant, the plaintiffs cannot besaid to have prima facie made out a case for grant of the adinterim injunction prayedfor. In Yahoo Inc. and Rediff Communication Ltd. cases the domain names inquestion were not descriptive in nature.