CHATARPAL SHARMA Vs. JAGANNATH DAS

JUDGEMENT

(1.) On the 19 of February, 1918, the plaintiff Chatarpal Sharma, a tradesman in Muttra, brought a suit against Lala Jagannath Das, also a tradesman, and also in Muttra. The plaintiff set out that for more than twenty years he had been selling medicine under the name of Sukh Sancharak Co., and that he had put upon the market a medicine by the name of "Sudha Sindhu," that the medicine had borne that name for more than twenty years, and that for more than eight years the medicine had been sold in an uniform get-up, that is to say, the bottle had always been the same size, there had been the same inner label on the phial, there had been the same external label, being the outer wrapper on the packet. Enclosed in the packet were directions and puff advertisements and description of diseases. He also said that in the year 1908 he had registered the labels as his trade mark. He further said in his plaint that he had what he described as "Agents" in the villages in India, Burma, Ceylon and elsewhere, to the number of 15,000. He gave evidence in support of all these matters, and he showed that for some years, at all events, about 100,000 bottles of this medicine had been distributed throughout this country every year. He complains of the conduct of the defendant who, he said, had imitated his labels and get-up of his medicine with a view, no doubt, to cut into and enjoy some part of this very prosperous trade of the plaintiff, which a year or two ago had brought him in some Rs. 14,000 profit annually. The plaintiff alleged that by reason of the similarity of the labels, of the wording on the labels, of the colouring, of the spacing, in fact which in general is called "the get-up," the defendant had put upon the market an article so like that which the plaintiff was selling and which had become associated with his name that it was calculated to mislead, and could be passed off as and for the goods of the plaintiff. He alleged that that conduct constituted an actionable wrong and entitled him to an injunction.

(2.) Taking the article as it is handed over from the seller to the buyer, one finds that in both instances the packet is cylindrical and approximately, indeed almost identically, of the same size. In each case the foundation of the paper of the outer cover is white. The registered label of the plaintiff has a peacock-blue background. The label of the defendant is green and there is thus a distinct and most appreciable difference in the general background colours. At the end of each packet and acting as seals for the fastening, the plaintiff has at one end the name of the medicine "Sudha Sindhu" in English. The defendant also has a label similar in appearance but with a green background and with the name of his medicine "Piyus Sindhu". Both have at the other end the name of the medicine in Hindi. Samples of other medicines sold by the defendant have been produced and at the bottom of such packets there is not the name of the medicine but the representation of a rising sun which is said to be the trade mark of the defendant.

(3.) Turning now to the text and the general conformation of the outer labels, we find in both cases they are the same size and have ornamental tracery running all round the outside along the outer edge. Both labels give prominence to the name of the medicine. Both names are printed in red ink with an outline of white, and on the right-hand side the medicine of the plaintiff is described as "a good remedy for cholera, asthma, cough and diarrhoea" On the left-hand side of the defendant's label the description is "an invaluable remedy for cough, cholera, diarrhoea and asthma". In the center of each label there appears what are said to be photographs of the plaintiff and the defendant, respectively. The background of the plaintiff's (in the copy furnished to us) is very dark. The background of the defendant's is white. Transversely across the chest, in each case, is the signature of the plaintiff and the defendant. In tablets below there is white printing on a red ground in, each, and underneath it white printing on a dark blue ground and the dark blue is precisely the same colour in each case. Inside the red tablet with the blue printing of the word "Sudha Sindhu" there appears an unnecessary white dot, probably a printer's error. It is clearly marked and clearly defined. In the big label of the defendant that dot is not reproduced, but when we come to examine the similar inside labels we find that that dot in the "Sudha Sindhu" label has by some extraordinary coincidence been incorporated into the defendant's label. Wrapped round each bottle is a smaller but similar label. At the top of the plaintiff's label are the words "this whole label is our trade mark, registered No. 13". At the top of the defendant's is "this whole design is our registered trade mark No. 16."