T NOOROODEEN SAHIB Vs. CHARLES SOWDEN

JUDGEMENT

(1.) The first three plaintiffs are importers of " Grey shirtings" from Manchester of which the, last three plaintiffs are the shippers. On these goods they have since 1889 stamped a " facing" which, to take a typical example, consists of letters, designs and numerals in the following order: T.A. Taylor & Co. (in. Roman capitals). A coat of arms. T.A.T. (in manuscript form). Scimitars placed horizontally varying in number for quality. Figures showing weight in lbs. A number. A circle within a circle with, inscriptions denoting Firm. Figures showing length in yards. A letter (Roman capital) A number.

(2.) The plaintiffs claim the whole of this combination in the sequence in which its details stand as their " trademark" and charge the defendant another importer of similar goods with the infringement of it by stamping his merchandize with a facing so closely resembling theirs in the character and order of his marks as to mislead the public into believing that in purchasing his shirtings they are purchasing the plaintiffs

(3.) The action is not upon a " trademark" properly so called as there is no registration of trademark in this country, but it is brought upon the right of an exclusive user of what may be more appropriately styled a " trade description" which is recognized and protected under Secs.2, 4 and 6 of the Indian Merchandize Marks Act IV of 1889. So that there can be no doubt that the plaintiffs are entitled to the injunction the learned Chief Justice has given them if they have established (1) their exclusive user of the abovementioned marking and (2) that the defendant has imitated it so that the imitation is in the words of Section 4 of the said Act " reasonably calculated to lead persons to believe" that his goods are their goods. My conclusions on these questions--which are really questions of fact--differ from those of my learned brothers and so I may as well state what they are and adduce my reasons afterwards. On the first point I find that the plaintiffs right of exclusive user is limited to the first four items of their marking that is to say the name of their firm, their coat of arms, the facsimile initials of the late Mr. Taylor, and the scimitars. On the second point I find that the defendant has not imitated any of those marks and further that what he has copied he was at liberty to copy and no one is likely to be deceived thereby into taking his goods for Taylor s.