THOMAS BEAR AND SONS (INDIA) Vs. PRAYAG NARAIN

JUDGEMENT

(1.) This appeal arises out of a suit for a permanent injunction restraining the defendant from selling chewing tobacco contained in tins or packets bearing the trade-mark of an elephant which is a colourable imitation of the plaintiff's trade- mark.

(2.) The plaintiff is a firm styled "Thomas Bear & Sons (India) Limited." The plaintiff's case is that the plaintiff company, or its predecessor in business, have been carrying on the business of manufacturing and selling cigarettes and tobacco for many years and have been doing extensive business in India. All the goods sold by the company bear the design of an elephant which is the trade-mark of the company. In particular, the company has since the year 1922 been selling in India a brand of cigarettes called the "elephant" cigarettes and a brand of tobacco known as "Virginia Bird's eye" in tins and packets bearing the elephant trademark. The defendant has recently started the sale of chewing tobacco manufactured by him at Cawnpore and this tobacco is sold in tins bearing a label on which the picture of an elephant and the name "elephant" is prominently displayed and therefore resembles the plaintiff's trade-mark. The plaintiff contends that purchasers are likely to be deceived by the picture of the elephant on the defendant's tins and will suppose that the defendant's goods are manufactured or sold by the plaintiff, and that the plaintiff's business, goodwill and reputation are likely to sustain injury.

(3.) The principal defences are that the defendant sells only chewing tobacco and does not deal in cigarettes or any sort of smoking tobacco and therefore the plaintiff has no right to obtain an injunction. It is also pleaded that the appearance of the label and design on the defendant's tobacco tins are quite different from the get up and label of the plaintiff's tins, so customers are not likely to be deceived. The defendant also denied that the plaintiff firm acquired any proprietary right in the elephant trade-mark in respect of their goods.