Swadeshi Mills Company, Limited v. Juggi Lal

Mears, C.J and Mukerji, J.:— The case was tried by and their Lordships' judgement, after reciting the facts of the case as above, thus dealt with the issues framed:—

Issue No. 7 was considered first and decided in the negative.

Issues Nos. 1, 2 and 4 were decided in the affirmative.

As to the remaining issues the judgement was as below:—

Issues Nos. 3, 5 and 6.

These three issues can conveniently be grouped together. The photograph, Exhibit 3, bearing the date the 19th of May, 1926, is a reproduction of the label and impressions used by the plaintiffs and the defendants respectively, the three impressions on the left being those of the plaintiffs and on the right those of the defendants. In examining them a disparity in the size of the ovals will be noticed. In fact the enlarged oval of the plaintiffs was selected for the photograph because the impression of No. 3 was faint. Numbers 3 and 4 should be compared to show the slight actual difference in size between the ovals of the plaintiffs and defendants. Similarity being a matter for the court we decided not to allow any evidence, as to the opinion of witnesses on this question—vide section 45 of the Indian Evidence Act, and Payton & Co., Ltd. v. Snelling Lampard & Co..

It will be noticed that the two top pictures are both of a lotus. It has been conceded by Mr. Kamlapat, the head of the firm the defendant No. 1, and the chairman of the board of directors of the defendant No. 2, and by his son Mr. Padampat, one of the directors of the defendant No. 2, that their label (Exhibit D) does represent a kamal (lotus). The similarity between the two pictures at the top lies probably only in this that both represent a lotus. The two middle pictures, the two trefoils, are no doubt again similar, but with the difference that the defendants' picture on the right hand is a little more elongated than the plaintiffs' picture on the left. At the bottom are the two ovals. The similarity of the appearance is apparent. The difference is this, that while the defendants' oval contains a rose branch with a flower the plaintiffs' on the left contains a lotus, and the defendants' pediment under the oval contains the word “phulchhap” in Hindi, while the plaintiffs' pediment on the left contains the word “kamalchhap” in Gujrati character. There is a difference in the letterpress also and there are similar differences in the letter presses of the two sets of pictures above the ovals. Examples of the actual appearance of the cloths with the oval and trefoil of the plaintiffs and defendants respectively are shown by Exhibit K.P 18 and Exhibit K.P 19.

Before we consider the question of similarity and the question whether goods of a similar character bearing the defendants' impressions are likely or not to pass off as goods manufactured by the plaintiffs, it will be worth our while to examine the history behind the defendants' designs.

The plaintiffs say that their great volume of trade in Cawnpore, Calcutta, Delhi and elsewhere, but especially in Cawnpore, attracted the attention of Mr. Kamlapat, the proprietor of the firm Juggi Lal Kamlapat, and he determined to go into the cloth manufacturing trade and to enter into competition with them. To that the plaintiffs take no exception. Their case, however, is that the defendant firm sought to obtain and did in fact obtain an immediate market for their goods by a close imitation of their designs and that this was done intentionally and as part of a campaign of imitation.

The evidence shows that Mr. Kamlapat and his family have been resident in Cawnpore for many years. At some time in 1922 he decided on this new venture. He erected mills and manufactured various kinds of cloth and garments and in particular cloth and garments closely approximating in quality and appearance to the five particular kinds by which practically the whole of the plaintiffs' trade in Cawnpore was built up and maintained. Of this also the plaintiffs make no complaint, recognizing it as an everyday incident of trade.

The evidence establishes that at first Mr. Kamlapat used the design of a shrub in a flower pot. Shortly after he took the figure of the goddess Lakshmi, at times seated, at times standing.

Then on the 30th of June, 1922, he wrote to Messrs Hate & Co., a firm of engravers and colour printers at Bombay, and wanted a quotation for a large number of labels., “The design is to be a lotus flower of dark red colour and the background should be the colour of water.” A rough sketch was enclosed. After some immaterial correspondence, Messrs Hate & Co. wrote on the 18th of July that the lotus design was the property of the Swadeshi Mills (the plaintiffs) and expressed regret that they could not copy or make another lotus design and requested Mr. Kamlapat to suggest any other design. Messrs Hate had spoken of the lotus design having been “registered” by the plaintiffs, and Mr. Kamlapat, on the 21st of July, asked for “one ticket of that design for our inspection.” In the witness-box Mr. Kamlapat admitted that he had seen the red, and pink coloured lotus flower (Exhibit B) of the plaintiffs hundreds and hundreds of times before June, 1922. In reply Messrs Hate are said to have sent the defendant the all blue label of a lotus flower which is a design very rarely used and then only on fancy and unbleached cloth. The sending of this blue label by Messrs Hate rests upon the evidence of Mr. Kamlapat alone and it is curious that Hate should not have sent the usual dark red and pink label of the plaintiffs when it was owing to a request for a lotus of a dark red colour that they had raised objection. If in fact the blue label was sent. Mr. Kamlapat may have thought that the plaintiffs had failed to register the dark red and pink design, and, attaching some fancied value to registration, may have thought he could steal a march upon the plaintiffs by adopting an imitation of it and “registering” it. However that may be, a fortnight later, Mr. Kamlapat sent to Messrs Hate a design which was the copy from which was printed Exhibit D, the first of the alleged infringements, and the defendant firm and the defendant company have used between December, 1922, and December, 1925, no less than 605,310 of these coloured lotus labels on their goods and as can be seen by the figures, their sales immediately increased. Pleased as we believe him to have been with the success achieved by his coloured lotus label, he decided to stamp his goods with an oval and pediment and also with a trefoil design and on the 19th of July, 1923, he wrote to Messrs Ganguli & Co., enclosing two sketches for blocks. Blocks were made and the impressions are No. 4 (the oval) and Exhibit G. In a letter of the 25th of July, 1923, Mr. Kamlapat directed the engravers that the line round the flower in the oval design should be zigzag and this in our opinion is one instance amongst many in which in the preparation of the designs Mr. Kamlapat was making careful and calculated differences.

Neither the defendant firm nor the company kept any record of the particular kinds of cloth or garments on which one or other or both of these two marks were impressed, but it is not disputed that they were used on an immense number of goods, as the sales accounts establish.

Sir Tej Bahadur Sapru, who appeared for the firm, opened Mr. Kamlapat's case along the only line which was possible. He said that Mr. Kamlapat knew that the plaintiffs had been doing business in Cawnpore for many year's and was aware of their prosperity and was also familiar with the labels used by them, that “when he devised these things he believed and honestly believed that he had created designs with essential differences”; that his designs were not calculated to deceive and that even assuming a remarkable similarity there was no reasonable likelihood that such designs would deceive.

That was not at all the way in which Mr. Kamlapat at the outset presented his own case and he was only driven into that position by cross-examination. He had previously been invited to study the 314 designs in the register of the Bombay Mill Owners' Association. He went through them with care and agreed that, save for the plaintiffs' designs which were in the register, there was no design of a lotus flower or oval or trefoil or any design in any way resembling any of these three marks. We regret to have to say that Mr. Kamlapat showed himself an untruthful and dishonest witness. The following extracts from his evidence will demonstrate the dishonesty of his methods and of his evidence. He said that “a trade-mark does not help to sell goods at all,” but he made the most important admission,—“since I began to use the coloured lotus flower my goods began to sell better.” He said that before choosing his designs he had seen the plaintiffs' marks on their goods hundreds and hundreds of times, that he “determined “to have a lotus flower, that he knew the plaintiffs were selling goods in Cawnpore with the lotus label and that they were doing a large trade, about 200 lakhs in the years between 1914 and 1924. He gave several reasons for using the lotus. “I put the coloured lotus flower on for the sake of beauty. In every case in which I use the coloured lotus flower … I do so because it is a pretty picture.” He said it was a “pure accident” that his goods and those of the plaintiffs had an oval with pediment and a trefoil, and also an accident that they were placed in the same position on the goods of each and stamped in the same colour.

It was not until August, 1924, when be got the letter of complaint from the plaintiffs, that he “recollected” that on his goods the marks were in the same order and were an oval with pediment underneath and a trefoil.

The “pure accident” theory was somewhat undermined by his subsequent admission that he “borrowed” the idea of the trefoil from plaintiffs' marks “from seeing it on plaintiffs' goods.” He said he could give no “special reason” why he chose the oval with pediment and the trefoil. Eventually he brought himself more into agreement with the sensible line adopted by counsel in his opening.

In substance it came to this that he had intentionally copied the designs of the plaintiffs. “When I made all these differences which I have pointed out, I did think that the Swadeshi Mills would have no cause for complaint” … “We had made differences in each design which we thought took away any imitation.” Whilst being perfectly ready to give up the oval With pediment and the trefoil, he maintained his right to the use of the coloured lotus flower. He concluded his evidence by saying “when I put my kamal flower on with its differences from the flower of the plaintiffs I knew there would be competition and that was my intention.” “I think the differences I have made in Exhibit D when compared with Exhibit E are such that the law will allow me to use it.” It will be noticed that on many of the cloths which have been exhibited there is the figure of the goddess Lakshmi which has been and is being widely used by the defendants. An illuminating incident occurred when the defendants put forward a coloured design (Exhibit K.P 25) which on cross-examination was admitted by the defendant to be the mark of the Gujrati Spinning Mill, a firm of old standing. “The coloured picture” he said “of theirs is identical with the picture I stamp on my cloth.” (vide Exhibit P.P 3).

Mr. Padampat, the son of Mr. Kamlapat and a director of the company, was called. He is a man of high intelligence and was not prepared to agree with his father that a trade-mark was of no value. On the other hand he said that the coloured lotus flower was no doubt of very great commercial value to the plaintiffs, arising from its use year after year and in the increasing volume of sales. Whilst he was willing to give up the oval and pediment and trefoil he objected to discontinue the use of the coloured lotus flower because they had used it on their goods since December, 1922, and it had become their trade-mark. When asked about the five classes of goods which it is alleged that the defendants particularly selected for competition with the plaintiffs he accepted the plaintiffs' figures of sale in Cawnpore from the 1st of July, 1922, to the 31st of March, 1926, as Rs. 10,345,293.

The effect of Mr. Kamlapat's evidence is quite clear. He intended to adopt the very valuable designs of the plaintiffs, and by careful examination and study evolved other designs of a like nature which he thought were such as the law would allow. That he did so with the object of obtaining part of the trade of the plaintiffs by passing off his goods as and for theirs, admits of no doubt. That he succeeded also admits of no doubt.

At some time or other he must have been advised that his only chance of retaining the valued coloured lotus flower was to jettison the oval and pediment and the trefoil. It was no doubt suggested, and it is no doubt hoped, that the court will say that there exist such differences in the coloured lotus pictures as to disentitle the plaintiff to relief on this branch of the case. In considering the English authorities we shall have to be extremely careful always to bear in mind that the percentage of illiteracy in this country exceeds 90 per cent, of the population and that English. Hindi and Gujrati characters convey nothing to the unlettered. This case comes up for decision at a moment when high hopes are being entertained of the development of India's great natural resources. For that purpose capital must be unlocked and some guarantee given that a business laboriously built up shall not be subject to invasion at the hands of an unscrupulous rival. As regards letterpress we think that the only present standard that can safely be set up is wholly to disregard differences of name and description in those trades where the article is sold in great quantities to the illiterate rural or urban population. Before we consider the cases, we should clear the ground by pointing out that, although the question was raised in the written statement as to how far the plaintiffs were entitled to an exclusive right to a trademark (vide issue No. 3), nothing was said in argument to show that the plaintiffs, by continuous use of the representation of a kamal, were not entitled to use the same and to stop the defendants from using it in a manner likely to prejudice the plaintiffs. It is not, therefore, necessary for us to cite any authorities in support of the well-known principle that in a country like India, where there is no statute for registering trade-marks, a right to a trade-mark is acquired by user. We take it, therefore, that the plaintiffs have a title to the trade-mark of a kamal or lotus and that the only question before us is whether the defendants are entitled to use their lotus or not. The first case cited by Sir Tej Bahadur Sapru is the case of Blackwell v. Crabb. The head-note runs as follows:—

“The Court will not restrain the use of a label on the ground of its general resemblance to the trade-mark of another manufacturer if it is different in points which a customer would look at in order to see where manufacture he was purchasing.”

The judgement is very short and was given on an interlocutory application for injunction to restrain the defendant from using the labels. The Vice-Chancellor remarked that the case was to be decided by a mere inspection of two labels. Then he proceeded to state that there were similarities and there were also great-differences. It appears that the plaintiffs in the case were the well-known manufacturers of pickles and their case was that the defendant had got up a label similar to theirs in order to cut into their trade. Vice-Chancellor Wood proceeded to point but the differences in the two labels and then said:—

“The defendant's name is printed on his label at least as large as the plaintiffs' is on theirs. The plaintiffs address is on their label and there is no address on that used by the defendants.”

As to the Royal Arms used by both the parties, he remarked that the use was common amongst tradesmen. He added—

“Thus it is difficult to say where the imitation begins but the important question is what a customer is likely to look at … The name is the thing which a customer would look at and this is conspicuously different.”

The case proceeds on the true assumption that everyone wishing to buy the article would, by virtue of being able to read, at once see “Crabb and Company” conspicuously printed and would realize-instantly that he was being offered a product of a firm other than that of Blackwell.

The next case cited was Leather Cloth Company v. American Leather Cloth Company. The report of the case shows the two labels of the two contesting parties and a glance at them shows marked dissimilarity. After an examination of the two marks of the parties, one appreciates why their Lordships agreed that the decree of the court of appeal, dismissing the plaintiffs' suit, should be upheld. Lord Cranworth says at page 535:—

“The defendant's trade-mark is certainly not the same as that used by the appellants. But is it only colourably different? I think it is so different as to make it impossible to say that it is substantially the same. No general rule can be laid down as to what is or is not a mere colourable variation. All which can be done is to ascertain in every case as it occurs whether there is such a resemblance as to deceive a purchaser using ordinary caution.”

His Lordship then went on to describe the points of similarity and the points of dissimilarity and then remarked:—

“The name of the company is different. The word ‘Crockett’ is prominently exhibited twice in the plaintiffs' upper half and once in the defendants'. No one taking the trouble to read the two can say that he would be deceived.”

Again, in this judgement we see the emphasis laid upon the accepted fact of ability to read and tile protection which literacy affords to the public. As remarked by his Lordship, no general rule can be laid down as to what is or is not a mere colourable variation. In other words, the standards differ and education is one of the factors. Quite apart from inability to read, we are satisfied that most of the illiterates in this country are so untrained as to eye and brain in the reading and understanding of pictures that they would be quite unable to point out, for example, the differences in the two coloured lotus pictures of the plaintiffs and defendants even if put side by side before them and wholly unable to carry the essential characteristics of either of them in their mind. They would know nothing more than that they wanted a cloth with a red coloured flower gummed or affixed to it. As illustrating the inability which villagers feel to look after themselves in towns and to carry through so simple a transaction as the purchase of a few rupees worth of goods it was proved by Kishan Chand Behan and referred to by other witnesses that a class of men by name Arhatia exist, who go out to the villages and collect 10, 20 or 50 people who want to make purchases. He conducts these men to the town and takes them to the shops and helps them in their purchases. Bansi Dhar also spoke of villagers coming to his shop accompanied by commission agents or brokers. We were, then referred to the Singer Manufacturing Company v. Loog. In this case, it appears, the defendant had got up a sewing machine similar to that known as Singer's. The defendants were said to have endeavoured to obtain and to have succeeded in obtaining, for their machines, some of the reputation attaching to the plaintiffs' manufacture. The plaintiffs succeeded in their claim, in part. The defendants had sold machines with a brass plate or label attached to them similar to the trade-mark of the plaintiffs. They were restrained from using the plaintiffs' trade-mark and there the litigation ought to have ended. But the plaintiffs objected to the use, by the defendants, of the very name “Singer” in certain advertisements and, before the House of Lords, the plaintiffs contended that the defendants should be restrained from using the name Singer in any way whatsoever. Their Lordships held that the use of the word “Singer” was in no way misleading and dismissed the appeal. It appears that the defendants compared their own machine with the Singer's, in the advertisements, and told the public in general that their machine was a better one and they also said that the system they had adopted was the “Singer System.” It was held that no right of the plaintiffs had been infringed. Lord Selborne in his judgement said:—

“The imitation of a man's trade-mark in a manner liable to mislead the unwary cannot be justified by showing either that the device or inscription upon the imitated mark is ambiguous and capable of being understood by different persons in different ways or that a person who carefully or intelligently studied it might not be misled.”

Sir Tej Bahadur quoted from Lord Blackburn's judgement to be found at pages 34 and 35 of the report, where his Lordship remarked that the defendant was not telling people that the machines sold by him were Singer's machines nor was he using a name similar to Singer's. The quotation was relied on to show that as the defendants were not using plaintiffs' name they were not liable. The comparison is not a good one. As we have pointed out, the names stamped on the cloths serve in the vast majority of cases to convey no meaning at all. Even if the contrary be alleged, the defendants in the case before us did use the word “phulchhap” which had been used in connection with the plaintiffs' productions.

Boord and Sons v. Bagots was a case strongly relied on by the defendants. This case arose out of the respondents' application to register their trademark. The application was opposed by the appellants. The Comptroller-General, who heard the application, allowed it. There was an appeal to a single Judge who dismissed the application. The court of appeal reversed the judgement of Neville, J., and an appeal was taken to the House of Lords. The applicants were the manufacturers of a liquor and they adopted for their trade-mark a cat in boots on snow. The objectors had been using as their trademark for the liquor (gin) manufactured, by them, a out on a barrel. The question arose whether the use of the picture of a cat was likely to mislead anybody into purchasing defendants' liquor for that of the plaintiffs. Lord Buckmaster, L.C, pointed out that, for certain reasons, gin was popularly known as “Old Tom” and that “Tom” came to be associated with the cat and that a cat was generally used as a symbol for gin. His Lordship went on to remark (page 386) that no one could venture to say that one mark could reasonably be mistaken for the other. It was conceded before their Lordships that it was impossible that any deception was likely to occur in the United Kingdom by the label adopted by the applicants. The question that their Lordships had to decide was whether the adoption of the label by the applicants was lively to injure the opponents' trade in the East. His Lordship found that, in their evidence, the witnesses for the appellants drew no distinction between the United Kingdom and other markets. Then his Lordship dealt with the argument that in the East people could not read and they purchased according to the mark the articles bore. In view of this argument he made observations which have been relied upon by the defendants. They are—

“The result of this evidence, therefore, establishes no more than this that the natives buy according to the mark and not according to the words and they look to the mark for the purpose of seeing what it is they buy. If they really look to the mark, deception is impossible, and the only way in which it could arise would be because people would ask for goods as the “cat” or “cat brand” goods and traders knowing that these phrases meant appellants' goods would deliberately supply goods that were not the appellants' simply because the label happened to bear the mark of a cat, though it was totally distinct from the cat which forms part of the appellants' device.”

Then his Lordship further said:—

“I see no reason to attribute such conduct to the dealers nor the innocence to the consumers; and, if it occurred, the wrong done to the appellants would be one for which they would have to seek a remedy in the courts within whose jurisdiction the offence was committed. There is, to my mind, no reasonable probability of any such deception arising, nor will the registration of the mark place in the hands of the dishonest traders a ready means of furthering a course of deceit.”

The question is how far these observations are applicable to this case. To start with, it was conceded that no deception was possible in England. Then a purely hypothetical case was put before their Lordships. The applicants had not yet sent their goods to the eastern market for sale, and it was no part of the applicants' case that the defendants had recently and dishonestly copied their label. Further, Lord Buckmaster indicated that if any deception was practised it would be for the court within whose jurisdiction the deception was practised to take cognizance of it and it was not for their Lordships to take cognizance of that sort of possible deception. Every case of passing off must be decided on its own circumstances and no decision can be more than a guide as to the general principles to be applied. This case was followed up in the argument by that of Payton & Co., Ltd. v. Snelling Lampard & Co.. This case, as the note of the reporter points out, laid down no rule of law beyond this, that it is the function of the Judge to say whether two designs were similar and it was not for a witness to express an opinion on the point. In this case, the manufacturers of coffee, sold by them as “Royal Coffee” took exception to the get-up of the defendants' coffee sold as “Flag Coffee.” Their Lordships were agreed that there was no similarity between the get-up and disagreed with the suggestion that when Royal Coffee was asked for Flag Coffee would be wrapped up in paper with intention to conceal its identity and fraudulently made over to a customer desirous of purchasing Royal Coffee. When once it is conceded that the get-up is not similar, nothing further need be said on the point. It is true that their Lordships remarked that the defendants could not be held liable for any fraud that might be practised by the retail sellers. But this remark must be taken with the fact that there was no similarity between the two kinds of goods. Lord Macnaughten said:—

“In the first place the defendants did not, as it seems, to me, pass off or attempt to pass off their goods as the goods of the plaintiffs. In the next place it is perfectly clear that no human being has been deceived. The third thing which is perfectly clear is that the plaintiffs' goods, if they have acquired a title in the market, the only title which they can have acquired is that of ‘Royal Coffee’ while as regards defendants' goods, if they have acquired or should acquire a title, in the market, it is or will be the title of ‘Flag Coffee’.”

These remarks must be taken with reference to the facts of the case and cannot be detached from the facts to be applied to those of an entirely different case. Here, Mr. Kamlapat and the defendant company are not honest traders. They have deliberately stolen the plaintiffs' trade-marks, not one but three. They have as regards the oval and trefoil intentionally used them in the same sequence. In doing this they have laid on themselves the burden of proving that their practice is not likely to deceive others. (See Sebastian's “Law of Trade-Marks,” 5th edition, page 140, and the cases referred to therein as authorities).

The next case cited on behalf of the defendants was the case of Birmingham Vinegar Brewery Company, Ltd. v. Powell. In this case the House of Lords affirmed the judgement of the court of appeal. Their Lordships decided that the plaintiffs' manufacture, known as “Yorkshire Relish” had acquired a reputation, which went to indicate that the article bearing the name was of plaintiffs' manufacture, and held that under the circumstances it was not open to the defendant to call his manufacture “Yorkshire Relish,” so as to induce purchasers into the belief that it was an article manufactured by the plaintiffs. This case in fact supports the plaintiffs, by reason of the circumstance that the plaintiffs' goods have acquired the name of “kamalchhap” and, therefore, the defendants have no right to use a “kamal” as their device or trade-mark in order to induce people to accept their goods as and for those of the plaintiffs.

Sir Tej Bahadur Sapru quoted the case of Johnston v. Orr Ewing and tried to distinguish it. His first argument was that since this judgement was delivered the trend of authority had gone the other way and the present state of authorities must be; inferred from two of the cases previously cited by him (viz., Payton & Co., Ltd. v. Snelling Lampard & Co., and Boord and Sons v. Bagots). We are clearly of opinion that such is not the case. We have tried to show that these two cases were decided on their peculiar facts and have no bearing on the present case. On the other hand, the case of Johnston v. Orr Ewing fully supports the plaintiffs' case and we have only to substitute the necessary names and descriptions of labels to make the judgement apply fully to the case before us. It appears that the plaintiffs had been selling yarn, dyed Turkish red, in the eastern countries with a device of two elephants with a banner between them. The defendants got up similar goods with a somewhat similar device and put them on the market. It was found that the defendants' device was in some respect dissimilar to the plaintiffs' device. The Lord Chancellor (Lord Selborne), however, made the following observations (page 225):—

“But although the mere appearance of these two tickets could not lead anyone to mistake one of them for the other, it might easily happen that they might both be taken by the native of Aden or of India, unable to read and understand the language, as equally symbolical of the plaintiffs' goods.”

It is impossible to state the contention of the plaintiffs in more appropriate words. In the case before the House of Lords no deception in fact had been proved, nor has any actual case of deception been proved in the case before us. But his Lordship sought for an explanation, as we ourselves sought in this case, from the defendants as to why the defendants should have adopted the particular device of the plaintiffs. His Lordship says:—

“Nor am I able to conceive any satisfactory explanation, under all the circumstances of this case, of the adoption by the defendants of that particular device, two elephants at the upper corner of the ticket with a cloth banner suspended between them, knowing as they did the plaintiffs' ticket, knowing also the character and circumstances of the markets and entering as they did upon this particular branch of trade with the direct object of competing with and underselling the plaintiffs, unless it was because they had a desire, and intention to approach to the plaintiffs' trade-marks as nearly as they possibly could. In such desire and intention no motive can be suggested except that of getting some part of the benefit of the goodwill and reputation of the plaintiffs.”

The plaintiffs in this case have been doing a very large trade for a long time. The magnitude of their business will be appreciated by the fact that from January, 1900, to December, 1922, the value of the goods manufactured by them was over 800 lakhs or about 5½ million pounds sterling. Their annual output is flow nearly 80 lakhs of rupees and of this they have been selling goods in Cawnpore alone to the approximate value of 28 lakhs of rupees a year. The defendants started a mill and began to manufacture goods similar, at least in five instances, to those of the plaintiffs and began to mark them with some one or other of the plaintiffs' marks. When the defendants adopted their design they knew that for years the plaintiffs had been selling, in the very market of Cawnpore goods with their own particular design and they definitely modelled their marks upon those of the plaintiffs. No possible motive can be assigned for this conduct except an intention to cut into the trade of the plaintiffs and to misappropriate some of it to themselves. The slight dissimilarity in the two lotuses is not in our opinion sufficient to give the defendants a right to retain and use it, especially in the view, which we reiterate and emphasize as a principal ground of our decision, that the letterpress, both of the plaintiffs and defendants, are meaningless symbols to all but an insignificant minority of purchasers.

In the case of Seixo v. Provezende, Lord Cranworth said at page 196:—

“I do not consider the actual physical resemblance of the two marks to be the sole question for consideration. If the goods of a manufacturer, from the mark or device he has used, have become known in the market by a particular name, I think that the adoption by a rival trader of any mark which will cause his goods to bear the same name in the market may be as much an invasion of right of that rival as the actual copy of his device.”

The case before us exactly fits into the observation of his Lordship. The plaintiffs have acquired a reputation on account of their trade-mark and the defendants have no right to adopt a trade-mark which can and will be described under the same name as that of the plaintiff' goods.

Several cases have been quoted on behalf of the plaintiffs to substantiate the proposition that no man has a right to pass off his goods, by adoption of similar defaces, as the goods of another. The two cases previously referred to, Johnston v. Orr Ewing and Seixo v. Provezende, are enough to establish the plaintiffs' right to succeed.

We accordingly hold that the defendants have by the use of devices similar to those of the plaintiffs tried to pass off their goods as those of the plaintiffs and that the plaintiffs have an exclusive right to their designs and figures and are entitled to restrain the defendants from selling goods with a colourable imitation of the plaintiffs' designs.

Issue No. 8.—It has not been controverted that the plaintiffs would be entitled to an injunction in case of the other issues being decided in their favour. It is equally clear that the plaintiffs are entitled to the delivery up of all the goods bearing designs and labels and figures similar to those of the plaintiffs, in order to have these devices and marks removed. The plaintiffs have given up their claim for an account. They ask for damages alone. The question is how are the damages to be estimated and what would be the amount of damages to which the plaintiffs are entitled?

The last question is not free from difficulty and the authorities on the point are not unanimous. The text-books (Sebastian, 5th edition, pages 253 and 254; Kerly, 5th edition, page 530, footnote) indicate that while in England the profits derived from the sale by the defendant of imitated goods have been taken to be the measure of damages to which the plaintiff is entitled, in America the plaintiff has been awarded the profits which he would have realized if he had sold the quantity of goods shown to have been sold by the defendant. We are of opinion that the profits made by the defendant cannot always be a true criterion of damages awardable to a plaintiff.

Unless a rival trader commences his career, as did the defendant, by appropriating the trademarks of other firms, there must always be an initial period during which the goods have to acquire by their own merit, by advertisement and “drive” a footing in the market. Goodwill has also to be built up. Time and money too are lost, through lack of experience, as was undoubtedly the case with the defendants, who at the outset manufactured one class of goods which were to a large extent unsaleable.

The plaintiffs proved a very moderate figure of all round profit which they showed to be just over 9 per cent. Both parties were anxious to avoid an account, as it would in the circumstances have been almost impossible to dissect the various classes of goods manufactured by the defendants and to apportion the profits to those bearing the infringing marks. Moreover, if the inquiry was to be held on the basis of general all-round profit, there would have arisen the question as to whether anything like 27 lakhs had been spent by the defendants on the establishment of the business.

That the defendants have succeeded materially in cutting into the plaintiffs' trade is clear. By consent, all the documents filed by the parties are to be treated as “admitted subject to all just exceptions” and the figures furnished by them are to be treated as correct. The plaintiffs' figures of sale of goods in Calcutta show a steady increase (Exhibits B.D 3 and B.D 4) till the highest point was reached in 1924. The next year's sale shows a marked decline, from 58 lakhs to 37 lakhs. The same is the case with the Cawnpore figures, Exhibit B.D 2. In nine months ending the 31st of March, 1926, the plaintiffs sold goods worth only 17 lakhs, while the sale during the previous twelve months was 30 lakhs.

The particular articles in which the defendants directly competed with the plaintiffs and on which they put one or more of the infringing marks were suti, salita chaddar, markin and dhotis.

The defendants, in the short period of some three years, sold goods so marked to the value of no less than Rs. 32,00,828. We believe that we are acting generously to the defendants in assuming that if these goods had borne the flower pot stamp or the Lakshmi design, they would have sold 40 per cent, of the total quantity. We think that this is a figure with which a jury of businessmen might fairly start, and that they might reasonably and properly give to the plaintiffs damages at the rate of 9 per cent, upon the remaining balance of 60 per cent.

On this basis, taking the round figure of sales at 32 lakhs, the damages come to Rs. 1,72,800. The actual apportionment of the damages is not a matter of practical importance, because the firm was the property of the Hindu family of which Mr. Kamlapat was the head and that same family hold in the company shares of the value of nearly 26 lakhs out of a capital of 27 lakhs. As the defendants' accounts do not show how much of the 32 lakhs was received by Mr. Kamlapat and by the company respectively, we propose to apportion the damages according to the extent of business done by each defendant. These figures, over the relevant periods, are roughly Rs. 47,00,000 and Rs. 34,00,000, and, so, as between the two defendants, the damages may be divided in the proportion of 47 and 34. On that basis the liability of the first defendant would be Rs. 1,00,265 and that of defendant No. 2 Rs. 72,535. These are, no doubt, considerable sums of money, but damages are in every case proportioned to the injury done, and we are satisfied that the defendants respectively made at least the amount of profit in which we are casting them in damages.

We, therefore, grant a perpetual injunction restraining the defendants, their servants and agents from placing upon goods of their manufacture and from selling any cloth or individual garments to which there is affixed or stamped or otherwise applied any label or design which colourably imitates—

(i) The coloured Lotus Flower (Exhibit E).

(ii) The oval (No. 3).

(iii) The trefoil (Exhibit F).

In view of the immense quantity of goods in the possession of the defendants, which bear one or more of the infringing marks and of the practical difficulties attendant upon requiring these goods to be delivered to an officer of this Court, we (with the consent of counsel for the plaintiffs) order the defendants to remove or erase each and all of the said infringing marks from all cloths and individual garments in their possession. This work is to be completed by the 17th of July, 1926, on or before which date Mr. Kamlapat; and his son Mr. Padampat are to make a joint affidavit stating that this has been done and expressing their willingness to give the plaintiffs or an officer of this Court inspection of their goods at their premises should the plaintiffs so desire. If this is done, an order for delivery up of the goods for the purpose of removal and erasure of the offending marks may be avoided. The defendants are to deliver within fourteen days to the Registrar of this Court the remaining balance of 262,50 coloured lotus flower labels now in their possession. Defendant No. 1 is to pay the plaintiffs Rs. 1,00,265 by way of damages, and defendant No. 2 is to pay to the plaintiffs the sum of Rs. 72,535 damages. The decree in favour of the plaintiffs, with respect to the amount of damages, will be subject to their making good the deficiency in court fee, within thirty days of the office report declaring what amount is due from them. In case of failure to pay the court fee, the amount of damages, payable by the two defendants together, will be limited to the sum of Rs. 25,000 as claimed in the plaint. This amount will be payable by the defendant No. 1 and the defendant No. 2 in the proportion of 47 and 34. The defendants will pay the costs of this action which will include the costs of commissions, and, in this Court, counsel's fees; and interest is to be calculated on the damages at the rate of 6 per cent, as from the 1st of January, 1926, until payment.

Suit decreed.