A BATCHAYI ROWTHER Vs. PARAMASWAMI PILLAI

JUDGEMENT

(1.) The plaintiff-appellant sued to restrain the respondents from passing off or attempting to pass off defendants goods as the goods of the plaintiff's manufacture, by use of packages of similar design, mark, figure, get up and name as those used by the plaintiff for his goods. The mark used by the plaintiff consists of a figure of Sri Krishna in a crawling posture. Below it are the words Krishnan mark cheroot Subedar and next below Vyarandha Dhantham patti churuttu and lastly the plaintiff's name and address. The defendant's mark consists of the mark of Sri Krishna slightly bigger and in a slightly different posture, but substantially a crawling posture. Below it we get the words Balakrishnan mark cheroots 25 and underneath we have the defendant's name and address. It would appear that for some years between 1915 and 1924, the plaintiff's brother, one Abdul Ganni Rowther, was carrying on business in cheroots and he used on his goods a. mark very similar to the one now adopted by the plaintiff, except for the difference in the name of the trader himself. It is admitted that Abdul Ganni Rowther became insolvent, and ceased to do business sometime in 1924 and it is only at least several months- later, i.e., sometime in 1925 that the plaintiff commenced doing business in his own name. In 1929, the plaintiff started criminal proceedings against the defendants under Section 482, I.P.C. The complaint was there presented in the name of Abdul Ganni Rowther and it stated that Abdul Ganni Rowther and the plaintiff were partners and that the plaintiff was the managing partner. In the course of the enquiry in that case, the plaintiff was forced to admit that that partnership, if it ever existed,. came to an end by 1924-25, and on the evidence recorded in that proceeding the accused were discharged under Section 253, Criminal P.C. This suit was instituted within a few months of the termination of that proceeding.

(2.) In the plaint the plaintiff alleged that for the last 20 years he had been manufacturing and selling a brand of cheroots with the mark now in question and para. 3 contained the allegations required by law that the said cheroots had come to be known, associated, distinguished and recognised by purchasers in the market as being the cheroots of the plaintiff's manufacture and of his manufacture alone . In the written statement, the defendants drew pointed attention to what has been established in the course of the enquiry in the criminal proceedings as to the termination of Abdul Ganni's business and of the plaintiff having started business only in 1925. On these allegations in the pleadings, issue 1 was framed in the following words: Is the plaintiff entitled to the exclusive right to the name and mark Krishna in regard to his cigars ?

(3.) The learned District Munsif who tried the case in the first instance did not keep the period of Abdul Ganni's trade sufficiently distinct from the period of plaintiff's own trade and he expressed his conclusion to the effect that the firm's name and the plaintiff's name have become associated with the mark. In the appellate Court, this way of dealing with the case was naturally objected to and the lower Court sent down fresh issues for trial with reference to the plaintiff's connection with the anterior business. On this remand, the trial Court returned a finding that the plaintiff was not a partner with his brother, Abdul Ganni in the business carried on by him. After the return of this finding, the lower appellate Court held against the plaintiff both on the question of his right to complain of any infringement and also on the question whether the name and mark adopted by the defendants were really calculated to pass off the defendant's goods as those of the plaintiff. If the determination of the second appeal should depend upon the latter question, I should have hesitated to accept the finding of the lower Court that the name and mark adopted by the defendants are not likely to deceive purchasers into believing that they represented the goods of a rival trader. There is great force in the criticism of the appellant's learned Counsel that this conclusion has been arrived at without due regard to the tests indicated in the leading eases. But as I am dismissing the second appeal on the first question, I do not propose to pursue the second question any further. The enquiry before the criminal Court as well as the allegations in the written statement in the present suit clearly put the plaintiff on enquiry as to what he had to prove, and the passage already extracted from para. 3 of the plaint clearly shows that the plaintiff's advisers fully realised what the law required the plaintiff to prove. Yet, when it came to trial, there was merely some jumble of what happened prior to 1924 and what was imagined have happened after 1925 and the learned District Munsif gave a kind of composite finding. The evidence on the plaintiff's side consists of that of the plaintiff and two other witnesses. The plaintiff distinctly admits that he has not produced any orders of goods received by him after he began to trade separately.