Case: Centron Industrial Alliance Limited Vs. Gillette U.K. Limited

the subject of proprietary right is incapable of subsisting by itself. It has no independent existence apart from the business to which it is attached. It is local in character and divisible; if the business is carried on in several countries a separate goodwill attaches to it in each. So when the business is abandoned in one country in which it has acquired a goodwill the goodwill in that country perishes with it although the business may continue to be carried on in other countries.It is not possible for us at this stage at least to accept the submission that there was no user at all in India or not sufficient user as to amount to destruction or abandonment of the Plaintiffs goodwill and reputation. It is now equally not possible to accept the submission that the goods of the plaintiffs had lost their distinctiveness and had ceased to be associated in the minds of possible consumers with the goods of the Plaintiffs on account of the policies of the Government of India as a result whereof the commercial user in India had become restricted. It is needless to refer to some other cases to which our attention was drawn at the Bar on this point since we have already held that each case will depend upon individual facts and the type of product (in the wider sense) in respect of which relief is claimed.We were also informed that in India the Plaintiffs collaborators, the said Indian Shaving Products Company Ltd., were required on account of Government decision to adopt a get-up slightly different from the Plaintiffs post-1963 get-up and to add the word "EJTEK" (whatever it may mean) after 7 OCLOCK. It was therefore submitted that in view of this there could be little chance of any confusion between the goods manufactured under licence in India by the Plaintiffs collaborator, viz., the said Indian Shaving Products Company Ltd. and the goods produced by the Defendants. We find no substance in this plea as the essential name still remains 7 OCLOCK. In any case, we are not dealing with the claim by the Indian Company in this Appeal but with the claim for interim relief by the English Company, the owner of the trade mark, and, therefore, will have to consider principally the get-up in which the goods are sold by the Plaintiff Company.It was then submitted that the trial Court was in error in granting injunctions on the Notice of Motion and that the injunctions had been granted in violation of the principles on which interim relief ought or ought not to be granted and the balance of convenience was entirely in favour of the Defendants. It was submitted that the proper order would have been to require the Defendants to maintain accounts and that appropriate relief could have been given to the Plaintiffs at the stage of final decision of the suit had they succeeded.In this connection, we were referred to certain observations of Lord Diplock in American Gvanamid Co. v.Ethicon Ltd.,(1975) 1 All E.R. 504 at 510-511. It is not necessary to set down the passage. Indeed, Lord Diplock very carefully and clearly stated that where interim relief is to be granted, the extent and the nature of relief must very from case to case. At the stage of considering interim relief the Court must consider the prima facie strength of the Plaintiffs case, the nature of the defence and whether ultimately the Plaintiff could be compensated for at the stage of the trial of the suit. The Court will also have to consider the probabilities of success in the defence and also apply its mind to the factor whether the damages likely to be sustained by the successful Defendant ultimately if injunction is earlier granted against them cannot be compensated for.A mere order directing keeping of the accounts does not appear to us to be warranted in this case bearing in mind the fact that this is a clear and deliberate attempt on the part of the Defendants (Appellants before us) to cash in on the Plaintiffs goodwill and reputation and to trap the unwary customer into buying their goods in the belief caused by this deliberate attempt of confusion that the goods are the well known goods of the Plaintiffs. The Defendants are recent entrants as far as these two blade names are concerned and the 1st Defendants at least claim to be makers of blades under other names having extensive reputation and goodwill. It that be so, it cannot be said that the Defendants would be so hurt by the injunctions sought for that on principles on which Courts grant injunctions the injunctions ought not to have been granted against them. Indeed, it appears to us that there will be very little damage to the Defendants. In any case, we would like to observe that this is one of the cases in which, irrespective of considerations of damage, the plaintiffs were entitled to the injunction granted by the lower Court at least both in respect of prayers (a) and (b) of the Notice of Motion.To a certain extent, we are not sure of the claim of the Plaintiffs to be given interim relief on the footing of copyright in an artistic work. We do not wish to express a firm opinion one way or the other since confirmation of the injunction in terms of prayers (a) and (b) would be sufficient at this stage to protect the interest of the Plaintiffs. We may add that the Defendants were permitted by the Court to sell off the existing stock of blades with the names 7-Up and 7 Baje and we were told a few days ago that those tucks have been almost exhaust. (The precise statement was that about 5,000 packets were left about four days ago.) In the circumstances, we cannot find fault with the Single Judge for granting interim relief to the Plaintiffs in terms of prayers (a) and (b) of the Motion.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]In our opinion, the decision of the Court in the Crazy Horse Saloon case obviously turned on the nature of the establishment and the physical situation and the approach of the Court or the ultimate conclusion in that case cannot be applied to the type of product which we are considering, viz., shaving razoris not possible for us at this stage at least to accept the submission that there was no user at all in India or not sufficient user as to amount to destruction or abandonment of the Plaintiffs goodwill and reputation. It is now equally not possible to accept the submission that the goods of the plaintiffs had lost their distinctiveness and had ceased to be associated in the minds of possible consumers with the goods of the Plaintiffs on account of the policies of the Government of India as a result whereof the commercial user in India had become restricted. It is needless to refer to some other cases to which our attention was drawn at the Bar on this point since we have already held that each case will depend upon individual facts and the type of product (in the wider sense) in respect of which relief is claimed.We were also informed that in India the Plaintiffs collaborators, the said Indian Shaving Products Company Ltd., were required on account of Government decision to adopt aslightly different from the Plaintiffsp and to add the word "EJTEK" (whatever it may mean) after 7 OCLOCK. It was therefore submitted that in view of this there could be little chance of any confusion between the goods manufactured under licence in India by the Plaintiffs collaborator, viz., the said Indian Shaving Products Company Ltd. and the goods produced by the Defendants. We find no substance in this plea as the essential name still remains 7 OCLOCK. In any case, we are not dealing with the claim by the Indian Company in this Appeal but with the claim for interim relief by the English Company, the owner of the trade mark, and, therefore, will have to consider principally thein which the goods are sold by the Plaintiff Company.It was then submitted that the trial Court was in error in granting injunctions on the Notice of Motion and that the injunctions had been granted in violation of the principles on which interim relief ought or ought not to be granted and the balance of convenience was entirely in favour of the Defendants. It was submitted that the proper order would have been to require the Defendants to maintain accounts and that appropriate relief could have been given to the Plaintiffs at the stage of final decision of the suit had they succeeded.In this connection, we were referred to certain observations of Lord Diplock in American Gvanamid Co. v.Ethicon Ltd.,(1975) 1 All E.R. 504 atIt is not necessary to set down the passage. Indeed, Lord Diplock very carefully and clearly stated that where interim relief is to be granted, the extent and the nature of relief must very from case to case. At the stage of considering interim relief the Court must consider the prima facie strength of the Plaintiffs case, the nature of the defence and whether ultimately the Plaintiff could be compensated for at the stage of the trial of the suit. The Court will also have to consider the probabilities of success in the defence and also apply its mind to the factor whether the damages likely to be sustained by the successful Defendant ultimately if injunction is earlier granted against them cannot be compensated for.A mere order directing keeping of the accounts does not appear to us to be warranted in this case bearing in mind the fact that this is a clear and deliberate attempt on the part of the Defendants (Appellants before us) to cash in on the Plaintiffs goodwill and reputation and to trap the unwary customer into buying their goods in the belief caused by this deliberate attempt of confusion that the goods are the well known goods of the Plaintiffs. The Defendants are recent entrants as far as these two blade names are concerned and the 1st Defendants at least claim to be makers of blades under other names having extensive reputation and goodwill. It that be so, it cannot be said that the Defendants would be so hurt by the injunctions sought for that on principles on which Courts grant injunctions the injunctions ought not to have been granted against them. Indeed, it appears to us that there will be very little damage to the Defendants. In any case, we would like to observe that this is one of the cases in which, irrespective of considerations of damage, the plaintiffs were entitled to the injunction granted by the lower Court at least both in respect of prayers (a) and (b) of the Notice of Motion.To a certain extent, we are not sure of the claim of the Plaintiffs to be given interim relief on the footing of copyright in an artistic work. We do not wish to express a firm opinion one way or the other since confirmation of the injunction in terms of prayers (a) and (b) would be sufficient at this stage to protect the interest of the Plaintiffs. We may add that the Defendants were permitted by the Court to sell off the existing stock of blades with the namesand 7 Baje and we were told a few days ago that those tucks have been almost exhaust. (The precise statement was that about 5,000 packets were left about four days ago.) In the circumstances, we cannot find fault with the Single Judge for granting interim relief to the Plaintiffs in terms of prayers (a) and (b) of the Motion.