SHANMUGHA NADAR Vs. SHANMUGHAVEL NADAR

JUDGEMENT

(1.) The first respondent (hereinafter referred to as the respondent) is a prominent Beedi manufacturer and trader carrying on business under the name and style of K.A. Shanmughavel & Co., in Shandy Bazaar, at Ambasamudram for about fifteen years prior to the suit. He claims that his Beedies have acquired such a wide reputation in the market, particularly the two brands known as "Shanmughavel Beedi" and "Asal Shanmugham" or "Shanmughani Beedi", that the term "Shanmugham" and its adaptations have, as applied to Beedies manufactured or sold at Ambasamudram, become so much identified with his business and goods as to denote them exclusively among the purchasing public. Having learned that the appellant who bears the name of Shanmugha Nadar, taking advantage of his name, started business in beedies just a few months prior to the suit under the name and style of "P.S. Shanmugham and Brother" near the respondent's premises at the same place and was selling beedies describing them as "Seal Shanmugham beedies" and marking them with a colourable imitation of his own seal, he brought the suit out of which, this second appeal arises against the appellant and his father (the second respondent) for an injunction restraining the defendants: (a) from using the trade mark described in the plaint schedule or any colourable imitation thereof or the words Seal Shanmugham Beedi Shanmugham seal beedi or Seal Beedi to designate or denote any beedies of their manufacture; (b) from carrying on business under the firm name of P.S. Shanmugham and Brother at all, or in any event without clearly and sufficiently distinguishing their goods from those of the respondent and without taking all precaution necessary in the trade and in the matter of wrappers and get up so as not to deceive and mislead purchasers; and (c) from using the term "Shanmugham" in connection or association with beedies as a descriptive term thereof or as a trade name for their goods as distinguished and apart from any trader's name, under which they may be, if permitted, entitled to carry on business.

(2.) Though the real question for determination by the Court in all such passing off actions, however complex the scheme of deception may be, is always whether or not the goods of the defendant have been represented as and sold as if they were the goods of the plaintiff See Reddaway V/s. Banham L.R. 1896 A.C. 199 as many as seven issues were framed in the suit, dealing with what are but different aspects of the same question, and it is to be observed that the separate consideration of these issues and the recording of separate findings thereon, some of them apparently contradictory, have given rise to some contentions which might not have been otherwise possible. These findings which are concurrent may be summarised as follows; firstly, as regards the trade mark or seal, though the respondent had been using it from about 1920, he has not been very particular about using it since 1925 and its use was "more or less discontinued in or about that time"; secondly, the term "Shanmughatn" has become so associated in the beedi trade at Ambasamudram and its vicinity with beedies manufactured by the respondent as to denote exclusively respondent's beedies; and the use of that term by the appellant either by itself or in conjunction with other words, as a description or designation of his goods would be calculated to deceive purchasers; thirdly the trade name of "P.S. Shanmugham and Brother" was a false name as no such partnership between the appellant and his brother was proved; fourthly so far as the get up of the goods is concerned, there was no such similarity in the labels or wrappers used by the parties as would lead to any mistake or confusion among purchasers; but by marking his goods with a colourable imitation of the respondent's seal and the words "Shanmugham seal beedi" the appellant intended to deceive purchasers. On these findings a decree was passed for the issue of an injunction restraining the appellant and his father (the second respondent herein): from using the term Shanmugham in connection or association with beedies as a descriptive term thereof or from using any trade name or trade mark in which the term Shanmugham occurs or from carrying on business in the Ambasamudram Taluk in the firm name in which the word, Shanmugham occurs.

(3.) It is against this decree that this appeal has been preferred.