CHHOTU SAO Vs. BANSI LAL

JUDGEMENT

(1.) This is an appeal by the plaintiffs and arises out of a passing off action. The plaintiffs carry on a joint family business, a soap factory, under the style of Saraswati Soap Factory. Their case is that they have been manufacturing a washing soap known as kaiehi soap from a long time. The cake of the soap has a flat circular base 3" to 4" in diameter, and as the learned Judge describes it when standing on the base the cake of soap appears tomb shaped about 1" to 2" high. Upon this cake appears the mark of a scissor with open blades and towards the bottom the word kaiehi is written in Nagri script. The plaintiffs on 15 February 1936, registered their soap with its size and trade mark kaiehi through the firm of H. V. Williams and Co. Patent and Trade Mark Agents at Calcutta. Accordingly their case is that since that date nobody can put kaiehi mark with or without any addition or alteration as its trade mark on any soap manufactured in India as long as the plaintiff's manufacturing business goes on.

(2.) The defendants are carrying on a soap business under the style of Sri Krishna Soap Factory and have started to manufacture similar soap with the mark of a scissor with open blades with the nominal difference that two marks like a star have been put on the two sides of the kaiehi and the word tara has been added after the word kaiehi in Nagri script. The plaintiffs allege that if the two cakes are compared it would be palpably clear that the points of similarity are far more numerous and predominant than the points of difference which are so slight that they are calculated to mislead uneautious and unwary purchasers especially those among whom the soap has great sale and reputation into an easy belief that they are purchasing the plaintiffs soap and the two star marks and the word tara after the word kaichi have been purposefully and designedly placed in such a position that the soap of the defendants can be easily foisted upon purchasers as a genuine product of the plaintiffs. The plaintiffs on these allegations instituted the suit giving rise to this appeal on 4 February 1939, asking that the defendants be restrained by perpetual injunction from manufacturing, selling or exposing for sale any soap under mark of kaichi and under any get up, size, shape and colour similar to or by way of colourable imitation of plaintiffs kaichi mark soap. Some other incidental reliefs were also asked for.

(3.) The defence to the action was that the plaintiffs have not established any reputation with respect to washing soaps with kaichi trade marks thereon and that the people of the locality amongst whom the soaps are sold do not by the term kaichi soap alone mean or understand the plaintiffs soap only, that soaps with kaichi marks are manufactured by various other persons from before 1936 and after and are being sold in the town of Bihar and neighbouring places where the soaps in dispute are being sold. It was also alleged that the defendants soap bears the device of kaichi and a tara and therefore it could not deceive even uncautious and illiterate people into believing that they were purchasing the plaintiffs soap. The defendants further allege that they have also got their trade mark duly registered in or about 1938. On these allegations a number of issues were framed the most important issues being "Have the plaintiffs acquired any right or property in the trade mark kainchi on washing soaps"? The other issues are whether the trade mark kaichi was symbolical only of the plaintiffs washing soap and whether the plaintiffs washing soaps with the trade mark kaichi have acquired a wide reputation in the market and whether the defendants have infringed that trade mark of the plaintiffs.