N MUNISWAMI MUDALIAR Vs. RRAJAGOPALA MUDALIAR

JUDGEMENT

(1.) This is an action for passing-off. The plaintiff publishes a journal known as "Ananda Bodhini" and he complains that the defendant recently started a periodical under the name "Ananda Guna Bodhini" and that the use of this name is calculated to deceive and to cause the defendant's goods to be taken for the goods of the plaintiff. Mr. S. Doraiswami Aiyar for the plaintiff now asks for permission to amend his plaint by alleging fraud. That the imitation of the plaintiff's name is calculated to mislead, is distinctly alleged in the plaint. For the plaintiff, it is contended that the allegation of fraud is already there, but that it is sought to put forward this case more clearly in the pleadings. I do not agree that the plaint contains a charge of fraud and the question therefore is, is the plaintiff now to be given liberty to amend his plaint?

(2.) In a passing-off case, it is well settled that fraud is not a necessary element of the right of action. The cause of action set forth in the plaint is thus complete ; but proof of fraudulent intention may materially assist a plaintiff in establishing probability of deception. [See Kerly on Trade Marks, 6 Edition, page 550]. As has been observed by Earl Loreburn in Claudius Ash, Sons & Co. V/s. Invicta Manufacturing Co. (1911) 29 R.P.C., at p. 475, When once you establish the intent to deceive, it is only a short step to proving that the intent has been successful, but still it is a step, even though it be a short step.

(3.) The principle underlying this, is thus tersely Stated in the course of the argument, in the same case, when it was before the Court of Appeal by Cozen's Hardy, M. R. If you find a defendant who is a knave, you may presume he is not a fool. That the defendant's conduct is calculated to mislead is thus the foundation of the action, although fraud on the defendant's part helps the plaintiff in proving that there is this probability of deception.