BRITISH AMERICAN TOBACCO CO LD Vs. MAHBOOB BUKSH

JUDGEMENT

(1.) This suit is brought by the British American Tobacco Company, Ld., against Sheikh Mahboob Buksh and Mahomed Ismail for a declaration that the plaintiff Company are the proprietors of the trade-mark, name and label described in the plaint; for an injunction against the defendants restraining them from infringing the same; for an account of profits, and for incidental relief including a claim for damages.

(2.) The case made by the plaint is that Kusi Lal Kabasi was the proprietor of a trade-mark, name and label, known as "Sri Durga" which was used by him upon packets of cigarettes sold by him and known as "Sri Durga" cigarettes: that by an Indenture of the 2nd of September, 1908, Kabasi assigned to the plaintiff Company "all that the trade-mark, name and label known as the "Sri Durga" trade-mark, name and label used upon packets of cigarettes, and the goodwill of his said business so far as the same related thereto: "that since the 2nd of September to, 1908, the plaintiff Company extensively used the trade-mark, name and label upon cigarettes manufactured and sold by them and also the words "Sri Durga" as a trade- mark upon the cigarettes sold by them: that by reason of such user the plaintiff Company's cigarettes marked with the trade-mark, name and label and words "Sri Durga" have become known to purchasers or intending purchasers as "Sri Durga" cigarettes in the cigarette trade, and I "Sri" Durga" cigarettes in the cigarette trade mean the cigarettes made and sold by the plaintiff Company: and that the defendants have infringed the plaintiff Company's trade-mark and the employment of labels by the defendants is an unlawful imitation of the get-up of plaintiff Company's good. The defendants on the other hand claim to have invented the trade name of "Sri Durga" as applied to cigarettes and to be the exclusive owners of it: that on the 29 of July they caused the "Sri Durga" brand with the name and label to be registered or notified: that they sold the "Sri Durga" brand of cigarettes in and from the month of August, 1908, under the same design: that the user by Kabasi was an infringement of their trade- mark: that the plaintiff Company acquired by the Indenture of 2nd September, 1908, no title to the trade-mark: and that the defendants cigarettes bearing the trade-mark and label were in the market before the plaintiff Company s.

(3.) The case was heard by Fletcher, J., who dismissed the suit with costs, holding that the plaintiff Company did not by the Indenture of the 2nd September, 1908, acquire from Kabasi the exclusive right of using the trade-mark, and that since that date they had not acquired any new exclusive right to the user of the mark.