THE NATIONAL SEWING THREAD CO., LTD., CARRYING ON BUSINESS IN CHIDAMBARAM Vs. JAMES CHADWICK AND BROS., LTD., A COMPANY REGISTERED UNDER THE ENGLISH COMPANIES ACT BY ITS DULY CONSTITUTED ATTORNEY, HARVY GODFREY

JUDGEMENT

(1.) THIS is an appeal in a passing off action in the Court of the District Judge of South Arcot. The defendant company against which a decree granting an injunction, ordering an account, and directing the delivery of the offending labels has been passed is the appellant.

(2.) THE respondent which is a company registered under the English Companies Act suing by its attorney alleged that it had been for a considerable number of years manufacturing and selling throughout India a sewing thread named "Eagley" with a distinctive label containing the figure of a bird, that the said device and name had become associated in the minds of the public and the traders with sewing thread made by the plaintiff and that the defendant put on the market for sale sewing thread with a label bearing the representation of a bird and the name "Eagle brand" and that such use is calculated to deceive the trade and the public into the belief that when purchasing the defendant's goods they are purchasing the manufacture of the plaintiff. The defendant denied knowledge of the manufacture by the plaintiff of sewing thread using the label in question and stated that when informed of it by the plaintiff in November, 1942, the defendant, to avoid any complaint, substituted the word "vulture" for the word "eagle" and that the differences between the plaintiff's label and the defendant's label are so many and so large that no ordinary and reasonable trader "could be deceived" into mistaking the defendant's label for the plaintiff's label. The defendant denied that the plain -tiff had any cause of action or was entitled to any injunction, account or damages.

(3.) THERE is a reference in both the plaint and the written statement to certain applications made by the plaintiff and the defendant for the registration of their respective trade marks under the Trade Marks Act (Act V of 1940). It is however admitted that the case falls to be decided without reference to the provisions of that Act and merely on the basis that one party alleges and the other denies that there is passing off of goods, a right of action which is expressly saved by Sub -section (2) of Section 20 of Act V of 1940.