NATIONAL SEWING THREAD CO LTD CARRYING ON BUSINESS IN CHIDAMBARAM Vs. JAMES CHADWICK AND BROS, LTD, A COMPANY REGISTERED UNDER THE ENGLISH COMPANIES ACT BY ITS DULY CONSTITUTED ATTORNEY, HARVY GODFREY

JUDGEMENT

(1.) This is an appeal in a passing off action in the Court of the District Judge of South Arcot. The defendant company against which a decree granting an injunction, ordering an account, and directing the delivery of the offending labels has been passed is the appellant.

(2.) The respondent which is a company registered under the English Companies Act suing by its attorney alleged that it had been for a considerable number of years manufacturing and selling throughout India a sewing thread named "Eagley" with a distinctive label containing the figure of a bird, that the said device and name had become associated in the minds of the public and the traders with sewing thread made by the plaintiff and that the defendant put on the market for sale sewing thread with a label bearing the representation of a bird and the name "Eagle brand" and that such use is calculated to deceive the trade and the public into the belief that when purchasing the defendant's goods they are purchasing the manufacture of the plaintiff. The defendant denied knowledge of the manufacture by the plaintiff of sewing thread using the label in question and stated that when informed of it by the plaintiff in November, 1942, the defendant, to avoid any complaint, substituted the word "vulture" for the word "eagle" and that the differences between the plaintiff's label and the defendant's label are so many and so large that no ordinary and reasonable trader "could be deceived" into mistaking the defendant's label for the plaintiff's label. The defendant denied that the plain-tiff had any cause of action or was entitled to any injunction, account or damages.

(3.) On issue No. 1 the Court below has found that the plaintiff has acquired a right to the exclusive use throughout India of the label marked "A" and the name "Eagley" in connection with sewing thread and on issues Nos. 3 and 6 that the defendant's label is a colourable imitation of the plaintiff's label and trade name calculated to deceive any ordinary or reasonable trader or member of the public into mistaking defendant's thread for plaintiff s. On issue No. 2, however, the learned District Judge has held that D.W. 1, the managing director of the defendant company did not himself know about the existence of the plaintiff's trade mark, but added that this conclusion did not exclude the likelihood that the artist who designed the defendant's label had seen the plaintiff's label. On issue No. 7 it has been held that there is no evidence to show that the defendant company has itself sold or passed off its goods as those manufactured by the plaintiff. The findings on issues 2 and 7 have not been traversed in the appeal. The appellant challenges the correctness of the findings on issues 1, 3 and 6.