DEVIDOSS AND CO A FIRM OF CLOTH MERCHANTS Vs. ALATHUR ABBOYEE CHETTY AND CO, A FIRM OF PIECEGOODS MERCHANTS

JUDGEMENT

(1.) The suit out of which this appealarises was instituted by the appellants on the original side of this Court for a declaration that they were entitled exclusively to the use of a certain trade mark and for a perpetual injunction restraining the respondents from using a similar mark. The defence was threefold. In the first place it was said that the respondents had the right to use the mark complained by reason of concurrent user. In the second place it was said that the appellants had in any event lost the right to exclusive user by reason of their acquiescence in the respondents using the marks now complained of. The third plea was that the appellants had abandoned any rights they might have had in the mark. The learned trial Judge (Gentle, J.) held that the use by the respondents of the mark complained of was an infringement of the rights of the appellants, but the appellants had acquiesced in the course of conduct pursued by the respondents and therefore they were not entitled to relief. On this ground he dismissed the suit but without costs. The appellants challenge the finding of the learned Judge that they acquiesced in the use of the mark by the respondents and the respondents support the judgment on the grounds advanced by them at the trial. They further contend that the learned Judge should have allowed them their costs.

(2.) The appellants are piecegoods merchants carrying on business in Bangalore and the respondents are piecegoods merchants carrying on business in Madras. The parties do not, however, confine their businesses to these places. The appellants deal in long cloth, shirtings and twill of Indian manufacture. Except for one shipment of goods in 1930 they have never dealt in piecegoods manufactured in England. The respondents do not deal in piecegoods of Indian manufacture, but import from England longcloth shirtings, twill and similar goods. The goods dealt in by the respondents are admittedly of superior quality to those dealt in by the appellants and command considerably higher prices. The learned Judge found as a fact that the business of the respondents caused no financial loss to the appellants and it is manifest that anybody who applied to the respondents for cloth would not get an inferior, but a superior article.

(3.) The mark of which the appellants claim the exclusive right of user consists of a figure of a baby sitting on four pieces of cloth and holding a rattle in the right hand. Above the figure is the word baby in English, and at the sides the same word in Nagiri, Urdu, Kanarese and Tamil. The mark complained of consists of the figure of a baby kneeling with its hand upon a single piece of cloth, partly unrolled, and underneath are the words Baby Brand in English, and the word Baby in Nagiri, Urdu, Telugu and Tamil. It is conceded by the respondents, as it must be, that if the appellants are entitled to the exclusive use of their mark, the mark adopted by the respondent will constitute an infringement of the appellants right. According to the plaint the appellants adopted their mark in the year 1927, but this has not been proved. Despite the allegations of acquiescence and abandonment advanced by the respondents no one from the appellants firm has ventured to go into the witness box. Therefore it has not been proved that the appellants adopted the mark in 1927, but the respondents have admitted that the appellants used it in 1929 and. for the purpose of this case it may be taken that it was adopted by the appellants in that year. The respondents decided to use the mark which they now claim as theirs in the early part of 1930 and they used it on goods imported into this country in August of that year. It was conceded by the appellants in the course of the hearing of the appeal that in instructing their suppliers in England to mark their goods with the mark complained of the respondents acted in good faith and in entire ignorance that the appellants had already adopted the mark of a baby. Further, it was accepted that the respondents have never used their mark on piecegoods of Indian manufacture, but that they have confined it exclusively to goods manufactured in and imported from England.