ASIATIC GOVERNMENT SOCIETY LIFE ASSURANCE COMPANY, LIMITED Vs. NEW ASIATIC LIFE INSURANCE COMPANY LIMITED

JUDGEMENT

(1.) The plaintiffs, the Asiatic Government Security Life Assurance Co., Ltd., sue the defendants, the New Asiatic Life Insurance Co., Ltd., claiming an injunction restraining the defendants from carrying on business, etc., under the name of The New Asiatic Life Assurance Co., Ltd., or any other name which includes the word Asiatic which is likely to deceive or mislead the public into the belief that the defendant's company is the same as the plaintiff's company. In para. 3 of the plaint the plaintiffs allege that their name, and particularly the word Asiatic had come to be associated with the plaintiffs " company in the minds of the public. I emphasise the public In para. 4 they allege that the defendants name substantially is the same as that of the plaintiffs company and is a colourable imitation of the plaintiffs company's name. In para. 5 plaintiffs allege that the defendants must have known of the plaintiffs company's existence and designation and that the action of the defendants in choosing and coining for themselves a name substantially similar to that of the plaintiffs is deliberate and is not bona fide. In para. 7 they allege that the defendants name is calculated to deceive the public and that considerable confusion is likely to be caused by a similarity of the names. I observed that in the plaint title the plaintiffs have wrongly described the defendants as an Assurance Co., whereas the correct description is Insurance Co., and I directed the plaint to be amended accordingly so as correctly to describe the defendant company.

(2.) The defendants in their written statement, para. 13, pleaded that, by reason of the plaintiffs company being incorporated in Mysore State and not under the Companies Act, it had no right of suit, but that defence has not been put forward before me on the other hand, the right of plaintiffs to sue is conceded. In para. 5 they state that they were not aware of the existence of the plaintiff company either at the time of its registration or for a considerable time thereafter. The general trend of the written statement is a denial of the allegations in the plaint,, especially the allegation that the defendants name is calculated to deceive or likely to cause confusion. No issues were settled, but I hold that the issue before me is whether the plaintiffs have proved that the use of the defendants name is calculated to deceive and so to divert business from plaintiffs to defendants or to cause a confusion between the two companies. This topic has been the subject of a very large number of decisions many of which have been cited before me, but I consider that the point I have to decide is as indicated above and is correctly stated in Kerly on Trademarks, 6 Edition, at the bottom of page 567.

(3.) This suit has been tried before me in August, 1938. The plaint was filed on the 19 October, 1934, nearly 4 years ago. The delay has therefore been deplorable and has been the subject of an investigation not relevant to the decision of the case, but the fact of the delay must be emphasised for two reasons: Firstly because the defendants say that during all this interval of time the Court did not grant an injunction and secondly because owing to passing of time the actual development of the business of these two companies is known, and I am now in a different position from that in which I should have been in 1934 when the developments in the future would naturally be matters of conjecture. I should however say a word about the absence of an application for an interim injunction. It seems to me to be common ground that at the time, it was agreed that an interim injunction need not be sought and that a speedy trial should be had. I draw the inference from the records that neither side was specially concerned at the speedy trial not materialising; but it is well to say that the case appeared in the list an immense number of times. It may be for this reason that the question of the interim injunction disappeared. However, the suit now comes before me for trial under the above circumstances.