JUGGI LAL-KAMALAPAT Vs. SWADESHI MILLS COMPANY LIMITED

JUDGEMENT

(1.) This is a case of the class which is generally known as a passing off action.

(2.) The plaintiffs, who are the respondents before this Board, are a milling company who deal largely in Indian cloths, and who, in connection with the sale of that Indian cloth use certain trademarks. In several of those trademarks, either in conjunction or alone, the lotus flower is the leading feature. Now their complaint is that the defendants, who are appellants before this Board, suddenly began to use trademarks which, though if critically looked at by a person of such literacy as to have critical powers of observation would not be confused, yet would be apt to be confused by the illiterate and unobservant; and in particular did despite to them for this reason that their trademark had really got to be associated with the name of "Lotus," so that their cloth was known as "Lotus cloth," and that a person coming and asking for "Lotus cloth" might be satisfied by having cloth delivered with the trademark of the defendants. That there may be deception, as one might phrase it, by sound as well as by sight was nowhere more forcibly insisted on than in the well-known case of Johnston V/s. Orr Ewing. (1882) 7 App. Cas. 219.

(3.) The plaintiffs also claimed for an account of profits, but at the trial they gave up their claim for an account of profits and said that they wished instead to claim for damages.