MOOLJI SICCA AND CO Vs. RAMJAN ALI

JUDGEMENT

(1.) This is a passing off action. The trial ran its tedious course for many days but in my opinion it is a very plain case. The suit relates to labels attached to packets or bundles of biris. A biri is an inferior substitute for a cigarette and is composed of rolled tendoo leaves with a little tobacco inside. Many decisions were canvassed before me at the trial but the law applicable to the circumstances of this case is clear and simple and the decision will be seen to turn upon the issue whether the plaintiffs or the defendant's labels were the first to be put on the market.

(2.) The plaintiffs case is that the defendant's labels (Exs. 10 and 4) are colourable imitations of the plaintiffs label, Ex. T. They claim that the word "Mohini," the registered number "247" and the figure of a woman upon Ex. T are distinctive marks of the plaintiffs goods and together make up Ex. T which is a device distinctive of the biris sold by them. The defendant admits that the registered number 247 is a distinctive mark of the plaintiffs biris. He also admits that the word "Mohini" and the figure are distinctive marks of the plaintiffs biris but he claims that the word "Mohini" and the figure have long been used by him in connexion with the sale of his biris and that his label (Ex. 10) was upon the market and had obtained a reputation in connexion with his biris long before the plaintiffs label (Ex. T) was put upon the market. The defendant; however does not claim an exclusive-right to the use of the word "Mohini" or the figure of the woman but claims a concurrent right with the plaintiffs to the user of those marks. <JGN>Page</JGN> 2 of 12

(3.) The plaintiffs case is a simple one, It was stated on their behalf that in 1912 the firm of Moolji Sicca & Co. started business in Calcutta and that in 19 13 biris were sold by the plaintiffs loose and not done up in packets or bundles. In 1914 Kalyanji a partner of the plaintiff firm saw in the shop of one Joshi in Bombay a coloured lithograph of a well known picture by a Bengali artist, Banerji by name, known as Durbasha's Wrath. The plaintiffs determined to initiate anew method of selling biris, that is to say, they decided to sell them not loose but done up in packets of 25 and bundles of 500. For the purposes of their business they decided to use a label with the figure thereon of Sakuntala taken out of Mr. Banerji's picture and to put on the label above the picture the word "Mohini" which means "dear to the heart" or "charming." Accordingly, Ex. T was produced by Joshi for the [plaintiffs, and on 16th March 1915 a [declaration on behalf of the plaintiffs was made before the Chief Presidency Magistrate of Calcutta declaring that this was the label which they had adopted for use in their business. There are no Trade-mark Acts in this country but a declaration of this description serves a useful purpose as being some [evidence of the genuineness of the mark which is the subject-matter of it. On 16 May 1916 the label (Ex. T) was affixed to the declaration. The plaintiffs asserted that before 1919 nobody other than themselves so far as they knew sold biris in packets and the defendant in his evidence admitted that nobody other than the plaintiffs and the defendant himself before 1919 had sold biris in packets. In the city of Calcutta the class of biri in suit which relatively is a cheap and inferior one is not sold, a more expensive biri being bought by persons who smoke biris in the city of Calcutta and it is the common case of both parties that the biris with which the Court is concerned in this case are sold to dealers for resale in the mofussil.