J C ENO LIMITED Vs. VISHNU CHEMICAL CO

JUDGEMENT

(1.) THIS is a passing off action. The plaintiffs have over a long period of time manufactured and sold in the Indian markets and elsewhere in large quantities a saline under the names " Eno " and " Fruit Salt." That saline is sold in octagonal shaped bottles packed in cardboard cartons enclosed in wrappers. Exhibit (C) is a specimen of the plaintiffs' goods, and I will discuss the get-up thereon later. The plaintiffs' case is that their saline so manufactured and sold, and bearing the marks " Eno" and " Fruit Salt," has acquired a very wide reputation throughout India, and that the marks " Eno " and " Fruit Salt" are well known to the trade and the public as denoting saline of the plaintiffs' manufacture, and that such saline is commonly asked for by purchasers by the name " Fruit Salt" or " Eno's Fruit Salt." The plaintiffs complain that the defendants have been selling and offering for sale in Bombay and other places in India saline not of the plaintiffs' manufacture under the name "Falaxar," and that that word is the Marathi equivalent of the plaintiffs' mark " Fruit Salt," and that the defendants are and have been selling and offering for sale " Falaxar" packed in bottles of the same size and shape as those of the plaintiffs and packed in cartons wrapped in wrappers so contrived as to be a colourable imitation of the plaintiffs' wrappers, Exhibit (E) is a specimen of the defendants' goods, and I will discuss the get-up thereon later. The plaintiffs allege that they have acquired a right to the exclusive user of the marks " Eno " and " Fruit Salt:" as applied to their saline, and that the defendants' mark " Falaxar" is a colourable imitation of the plaintiffs' mark " Fruit Salt," and is calculated to deceive purchasers into the belief that the defendants' saline bearing the mark "Falaxar" is saline of the plaintiffs' manufacture. The plaintiffs further allege that the get-up of the defendants' saline is a colourable imitation of the get-up of the plaintiffs' saline and is calculated to mislead purchasers into the belief that the defendants' saline so got-up is saline of the plaintiffs' manufacture.

(2.) BY their written statement the defendants admit that the saline manufactured and sold by the plaintiffs in bottles bearing both the marks " Eno " and " Fruit Salt" has acquired a wide reputation and commands a large sale in the market in the principal cities of India. They admit that the mark " Eno" is well known to the trade and the public as denoting the saline of the plaintiffs, but deny that the words " Fruit Salt" by themselves are known to the trade or the public as denoting the saline of the plaintiffs' manufacture. They allege that the saline manufactured by the plaintiffs is commonly called and asked for by purchasers by the name of " Eno " or " Eno's Fruit Salt" and not by the name " Fruit Salt." They admit that they have been selling and offering for sale in Bombay and other places in India since the year 1931 a saline manufactured by them under the name " Falaxar." They deny that " Falaxar" is the Marathi equivalent of the mark " Fruit Salt." They deny the alleged colourable imitation and say that the floral design and pictorial representation of fruits on their wrappers is common, to the trade. They deny that the plaintiffs have acquired a right to the exclusive use in India of the mark " Fruit Salt," and say that these words have acquired merely a descriptive meaning in the Indian market. They say further that the plaintiffs' claim is barred by the law of limitation.

(3.) MR. R.N. Katrak is now and has been for the last nine years the sole sale representative of the plaintiffs in the Bombay Presidency. From 1912 to 1917 he attended in Bombay to the sales of the plaintiffs' fruit salt. He said that the get-up, as it now appears on exhibit (C), was the same between 1912 and 1917, and since 1931 as it is now as far as he could recollect. His recollection also was not challenged in cross-examination. MR. W.V. Pendhar kar, one of the defendants' witnesses, stated that he used to sell the plaintiffs1 fruit salt some eighteen years ago at Bhandara in the Central Provinces, where his father carried on business, and where the witness assisted him. He said further that he had known the plaintiffs' bottles for many years with the same carton and wrapper upon them which are upon them; now. One G. v. Tole, another of the defendants' witnesses, stated that he had read about Eno's Fruit Salt before he began to sell exhibit (E), and that he had never heard or read of any Fruit Salt except Eno's Fruit Salt. The admission of the defendants in their written statement and this evidence clearly establish the reputation in India and the extent of the plaintiffs' sales.