HOOGHLY FLOUR MILLS CO LTD Vs. NRITYANANDA DUTT

JUDGEMENT

(1.) This is a very plain case. The plaintiff company seeks to restrain the defendant from using their trade mark and copying the get-up of their goods. Both parties sell in the Calcutta market a whole meal flour said to be valuable as a preventive of cure of beri-beri. Both sell flour in small bags of 2, 5 and 10 seers each-that is both supply flour put up in quantities for domestic consumption, and the evidence is that many buyers are illiterate. The plaintiff company started a mill in 1932 and adopted a device representing "Mother India" as a trade mark and introduced sealed brown paper bags for marketing their flour. These bags had panels of printed matter in Bengali and Hindi. The words "Bharat Mata" mark were printed on these bags but not in a conspicuous manner. The name of the mill was printed on the back of the bag but not in a conspicuous manner. The plaintiff's trade increased from 7,000 to 8,000 maunds in 1932-33 to some 80,000 maunds in 1935 and 1936. They claim, and I think the evidence amply supports this claim, that there was a large demand for their flour, and that consumers asked for the "Bharat Mata" brand and looked for the picture on the bags and the get up of the bags before purchasing.

(2.) The defendant's story is that he started with a small shop-a grocer's shop-and that he himself used to take ground-flour to his customers some 13 in number, in 1337. At first, he says the bags in which his flour was sold were plain. There, he says, he stamped on them back and front a small device representing "Mother India" and called his flour "Bharat Janani" flour. According to him it was not until 1343-that is between April 1935 a April, 1936 that he obtained many customers. Though the evidence is not very precise on the point, for it is the defendant's evidence, it is argued that this increase of trade from 13 to 365 customers it is said-(but admittedly there was a great increase)-dated from the introduction of a printed bag with a larger representation of "Mother India." It was admittedly about this time that the defendant secured retailers as customers. It was for the plaintiff to establish if he could that the increase coincided with the use of his mark, and that is not proved.

(3.) The defendant's case is that his new bag merely had an enlarged replica of his old device on it asnd that evice and everything else which appears on the plaintiffs bag is common to the trade-and that the distinguishing feature is that whereas the plaintiff's goods are known as "Bharat Mata," his are known as "Bharat Janani." Taking these points one by one. The defendant did not plead that anything was common to the trade, but I allowed that issue to be raised for he had alleged previous user. Technically and actually that is a very different proposition but the evidence on either question is very much the same, and the defendant was really taking on himself a harder matter to prove, for to establish that anything is common to a trade requires more evidence than to establish previous user. As regards the main feature of the get-up pi the plaintiff's bag, the pictorial representation of "Mother India", the defendant relied on four other trade marks, which it seems command some sale in the market, but apparently not a large sale. In all these trade marks there is a representation of a lady or goddess, but there is no similarity between any of them and the plaintiff's picture. Not even the most unwary customers would mistake one of them for the plaintiff's mark. Similar paper bags are used, but the general get-up of these four bags is not anything like that of the plaintiff's bag. In my opinion on an inspection of these four bags and the plaintiff's bag, no case of the general get-up or of the picture being common to the trade has been established. The defendant's new bag seems to me to be a deliberate imitation of the plaintiff's bag-it is superficially identical.