B.S. Dhillon, J.
1. The appellant, The General Electric Company of India (Private) Limited, filed a suit against the defendants pleading that the plaintiff is the original proprietor of a trade mark in India for its electrical goods including lamp-holders consisting of the letters 'G.E.C.' and was registered under Cls. 7, 9, 11 and 12 of the fourth schedule to the Trade Mark rules, 1942. It is averred that the plaintiff's electrical goods including lamp-holders are of very superior quality and the defendants have wrongfully sold and passed off and is selling and passing off the lamp-holders not of the plaintiff's manufacture as and for the plaintiff's lamp-holders. It is also averred that the defendants sell and pass off lamp-holders under the name of 'A.E.C.' or 'E. C.' Lamp-holders and the letter 'A' of the letters 'A.E.C.' or 'E. C.' which letters are written or inscribed in the very same manner in which the letters 'G.E.C.' are inscribed on the lamp-holders of the plaintiff's manufacture. It is further averred that the letter 'A' of the letters 'A.E.C.' is invariably and deliberately half obliterated so as to give an impression that the said letter 'A' is in fact letter 'G'. It is pleaded that the defendants mislead the public to believe that they are the plaintiff's lamp-holders and thereby cause injury both to the public and to the plaintiff. It is further pleaded that the defendants infringed the plaintiff's trade mark and, therefore, a prayer was made that an injunction restraining the defendants and their servants and agents from infringing the plaintiff's trade mark, be issued. It was also prayed that a perpetual injunction to restrain the defendants from putting up and offering for sale and selling and /or causing to be put up or offered for sale and sold lamp-holders not of the plaintiff's manufacture or merchandise or any wrappers in respect thereof bearing the marks 'A.E.C.' or 'E. C.' In any manner at all, be also issued and that a decree for damages of Rs. 1,000/- tentatively be also issued. In the written statement filed by the defendants, it is claimed that the plaintiff's goods have no reputation in the market and that the goods manufactured by the defendants' company have a very high reputation throughout India. It is denied that the plaintiff company has any registration of their trade mark of lamp-holders and that the defendants ever wrongfully sold or passed off any lamp-holders as those of the plaintiff's manufacture. It is further denied that the trade mark 'A.E.C.' is similar to the trade mark 'G.E.C.' or that the word 'A' is obliterated by the defendants as alleged by the plaintiff. It was, therefore, prayed that the suit of the plaintiff be dismissed. The learned trial Judge framed the following issues on the pleadings of the parties:--
1. Whether the suit has been rightly valued for purposes of court-fee and jurisdiction?
2. Whether the suit falls within the purview of Section 73 of the Trade Marks Act and is thus triable by this Court?
3. Whether the plaintiff company has got a registered trade mark for lamp-holders and their wrappers?
4. Whether the defendants had infringed the trade mark of the plaintiff with respect to lamp-holders and their wrappers?
5. Whether the defendants had been passing off their lamp holders as those of the plaintiff company?
6. Whether the plaintiffs are entitled to the injunction prayed for?
7. Whether the plaintiffs are entitled to damages claimed for ?
2. Issues Nos. 1 and 2 were decided in favour of the plaintiff. Under issue No. 3 it was held by the learned trial Judge that the plaintiff's company had nor registered trade mark for the lamp-holders and their wrappers. Under issue No. 4 it was held that the defendants had not infringed the trade mark of the plaintiff with respect to the lamp-holders and their wrappers. Under issue No. 5 it was held that the defendants never passed off their lamp-holders as that of the plaintiff's company. As a consequence of the findings on issues Nos. 3, 4 and 5, it was held under issues Nos. 6 and 7 that the plaintiff was not entitled to the injunction prayed for nor he was entitled to any damages and consequently the suit was dismissed by the trial Court. The learned counsel for the appellant challenged the findings of the learned trial Court on issues Nos. 3, 4 and 5.
3. As regards issue No. 3, I have no hesitation to hold that the view taken by the learned trial Court cannot be sustained. It is in evidence that trade mark No. 112521 in the name of The General Electric Company limited, Magnet House, Kingsway, London, W. C. 2, England, stands registered in respect of apparatus, devices and fittings for use with electric lights and electric light installations, electric lamps of all kinds not included in other classes etc. Etc. for a period of 15 years with effect from 8-8-1952. The General Electric Company of India Ltd., Magnet House, Chittaranjan Avenue, Calcutta, are the registered users of the aforesaid trade mark. Earlier to this, the trade mark of the said Company stood registered at No. 112521 for the said goods from 8-8-1945 for a period of seven years. This is quite evident from Exhibits P. H. and P.T. respectively. The finding of the learned trial Judge, that the trade mark of the General Electric Company of England which is 'G.E.C. Made in England' cannot be said to be the trade mark of the plaintiff company is baseless. It is clear from Exhibit P.H. that the plaintiff-company is registered as the registered users of the said trade mark 'G.E.C.', therefore, this finding of the learned trial Judge cannot be sustained. Moreover, the observations of the learned trial Judge that the lamp-holders are not included in the apparatus, devices and fittings for use with electric light and electric light installations, are also not correct. Lampholders are articles devised to keep hold over the electric lamps. The apparatus, devices of fittings, without the use of the lampholders, cannot culminate in the lighting of the electric lamps. Therefore, merely because the lampholders are not specifically mentioned in the registration certificate, on that ground alone, it cannot be found that the trade mark of the lampholders is not registered for the plaintiff-company. The words in the registration certificate in respect of 'Apparatus, devices and fittings for use with electric lights and electric light installations' do include the lampholders. The observations of the learned trial Judge that Shri S.L. Gulati (P.W. 3) admitted that the lampholders are not specifically mentioned in the registration certificate, are of no consequence. I find from the statement of Kishore Chand (P.W. 1) that the electric light installations include lamp-holders etc. To the similar effect is the statement of Shri S. L. Gulati (P.W. 3) and Shri Jang Bahadur Singh (P.W. 4). Similarly, Shri Gurbachan Singh Chaddah (P.W. 5), who was the Electrical Engineer of the plaintiff-company, also deposed to the same effect. The observation of the learned trial Judge, that if switches etc. were to be included in this general clause, it was not necessary to get the switches etc. registered separately, is without any merit. Be that as it may. We are not concerned with the switches etc, but the precise question before us is whether the lampholders can be said to be the apparatus or device or fittings for the use with the electric light and electric light installations. The answer clearly is in the affirmative. There is no evidence led in rebuttal for taking a contrary view. For the reasons recorded above the finding of the learned trial Judge on issue No. 3 is reversed and it is held that the plaintiff company has got a registered trade mark mentioned above for the lampholders and their wrappers.
4. As regards issue No. 4. I am inclined to hold that the approach of the learned trial Judge in considering this aspect of the case is not wholly correct. No doubt the trade mark used by the defendants' company is 'A.E.C.' and that of the plaintiff's company is 'G.E.C.' but the plaintiff's case is that the word 'A' is obliterated in such a manner so that it should read like 'G' and further that there is a similarity between the two including phonetical similarity. In order to appreciate this aspect of the case, it would be worthwhile to quote the observations of Parker. J; in Re Pianotist Co.'s Application. (1906) 23 RPC 774, which are as follows:--
'You must take the two words. You must judge them, both by their look and by their sound. You must consider the goods to which they are to be applied. You must consider the nature and kind of customer who would be likely to buy those goods. In fact you must consider all the surrounding circumstances; and you must further consider what is likely to happen if each of those trade marks is used in a normal way as a trade mark for the goods of the respective owners of the marks.'
5. These observations of Parker. J. were approved by the Supreme Court in Amritdhara Pharmacy v. Satya Deo Gupta. AIR 1963 SC 449.
6. Their Lordships of the Supreme Court in that case were considering the comparison of the words 'Amritdhara' and 'Lakshmandhara'. In considering this aspect of the case it is to be noted that a critical comparison of the two names may disclose some points of difference but the test to be applied is of an unwary purchaser of average intelligence and imperfect recollection, who would be deceived by the overall similarity of the two names having regard to the nature of the articles he goes to purchase with a somewhat vague recollection that he had purchased a similar article on a previous occasion with a similar name. Their Lordships in that case after applying these tests came to the conclusion that the overall similarity between 'Amritdhara' and 'Lakshmandhara' were likely to cause deception or confusion within the meaning of Section 10(1) of the Trade Marks Act, 1940. It is thus to be seen that the observations of the learned trial Judge that the shade carrier ring in the lamp-holders manufactured by the G.E.C. of England is not similar to the holders manufactured by the defendants' company or that there is difference in quality also or that in G. E.C. holders there is a piece of wood in the upper part, while in the A. E. C holders there is a piece of rubber and that there is a difference of colour also between the two lampholders; where as G.E.C. Holder is not of polished brass while A.E.C. Holder is of polished brass and that the weight of both the lampholders is also different, are not quite relevant for the determination of this issue. No purchaser of ordinary intelligence who had earlier purchased the G.E.C. Lampholders, would be in a position to appreciate these minor differences if there is phonetic similarity in the trade marks or similarity otherwise between the two lampholders. It is not denied that the size, shape, hole and all other things of both the lampholders are of similar nature and it cannot also be denied that the phonetic similarity between the words 'G. E. C'. And 'A.E.C.' also does exist. Both the articles are lampholders put in the same use by the consumers. A purchaser of ordinary intelligence is bound to confuse the word 'A.E.C.' for 'G.E.C.' If he, at a previous occasion, had purchased a G.E.C. lampholder and again wanted to purchase the same but he is offered A.E.C. Lampholder, he having imperfect recollection about the actual word G.E.C. The learned trial Judge, while discarding the evidence of Shri Chaman Lal P. W; observed as follows:--
'Chaman Lal P.W. 2 deposed to the fact that in the month of June. 1959 he purchased two lampholders Exhibits P. E. And P. F. wrapped in papers Exhibits P. G. And P. H. from Suprabhat Electric Company, Delhi but when he reached home, he learnt that these were the goods of A.E.C. He himself read A.E.C. Inscribed on them. When he himself had read the said inscription, then it cannot be said that the letter 'A' was obliterated.'
It would be seen from the above that while considering the statement of Chaman Lal P. W; the learned trial Judge completely ignored the approach to be adopted in examining this question. The similarity between the lamp-holders of 'G.E.C. and A.E.C.' Marks including phonetic similarity, has to be kept in view in respect of an ordinary purchaser having imperfect recollection. The articles produced by the plaintiff and the defendants are the lampholders which are to be used for the same purpose. Their physical appearance is also similar. There is phonetic similarity in the names 'A. E. C'. And 'G.E.C.' The observations of the learned trial Judge that the lampholders prepared by the defendants' company with the mark 'A. E. C'. are of polished brass whereas the 'G.E.C.' Lampholders are not of polished brass, are again of no consequence. No doubt Exhibit D.W. 1/C produced by D.W. 1 is of polished brass, but the lampholders of the defendants' company, which were produced by P.W. 2, are Exhibits P. E. and P. F; which are of brass and similarly the lampholder Ex. D.W. 1/D produced by D.W. 1 is of brass and of the same colour. I also find that on the lampholder Exhibit D.W. 1/C prepared by the defendants' company, the word 'A' is not perfectly legible and the same can be misconstrued as 'G'. Similarly on the Wrappers Exhibits P. G. and P.H. the word 'A', though can be read as 'A', if minutely read, but if a person looks at it in a casual manner, the same can be misconstrued. The authority relied upon by the learned trial Judge reported in Coca Cola Co. Of Canada Ltd. v. Pepsi Cola Company of Canada Ltd., AIR 1942 PC 40, is not applicable because the facts of that case are quite different from the facts of the present case. In the Privy Council authority, the case under consideration was under the (Canada) Unfair Competition Act (1932), as applicable in Canada. Section 3(c) of that Act provided that no person shall knowingly adopt for use in Canada in connection with any wares, any trade mark which is similar to any trade mark which is in use in Canada by any other person and which is registered pursuant to the provisions of that Act as a trade mark for the same or similar wares. The Privy Council was interpreting the word 'similar' as contained in Section 3 of the said Act, but in the present case, the words, which are to be considered are whether the trade mark used by the defendants is a trade mark which is identical with or deceptively similar to the plaintiff's trade mark. In this view of the matter, the finding of the learned trial Judge on issue No. 4 cannot be sustained and the same is, therefore, reversed.
7. The finding of the learned trial Judge on issue No. 5 is also to be reversed. In a suit for injunction for passing off, the plaintiff has to prove that his name, mark, sign or get up has become distinctive. He has to further show that the defendant's use of name and mark was likely to deceive or cause confusion or injury to the goodwill of plaintiff's business. It has to be seen whether both these tests have been satisfied in the present case or not. As far as the first test is concerned, I have no reason to disbelieve the evidence of the plaintiff's witnesses when they state that the General Electric Company of India is the biggest concern in the world. The evidence further shows that this company got the trade mark 'G. E. C'. registered as for back as 1945 and it cannot be denied that the trade mark 'G.E.C.' of this company has become distinctive in the market. As regards the second test, it is to be observed that the action for passing off is an action for deceit, for colourable limitation of plaintiff's mark in relation to his goods which have acquired distinctive reputation in the market. In my opinion, in such a case the evidence of actual deceit is not necessary. The use of the similar mark either visually, phonetically or otherwise such as in get-up, packing and other writings so as to conclude that there is limitation, is sufficient to complete the cause of action for passing off. Similar view was taken up by the Calcutta High Court in East End Hosiery Mills (P.) Ltd. v. M/s. Agarwal Textiles Mills, AIR 1971 Cal 3. In view of my findings on issues Nos. 3 and 4, it has to be held that the plaintiff has successfully proved the passing off action of the defendants in lampholders. The statement of Chaman Lal (P.W. 2) has been disbelieved by the learned trial Judge on the grounds which are not germane to the view point from which this case has been examined. The observations that there is nothing in his statement to show that he paid the price of G.E.C. Lampholders as there was great disparity between the prices f both the lampholders and, therefore, it cannot be said that he was deceived, is neither here nor there. The test is that of a common purchaser of imperfect recollection who had earlier purchased an article with a trade mark of which he is not sure, and a similar article with a more or less similar trade mark is being offered to him and he takes it to be the article which he had purchased earlier. Merely because Chaman Lal (P.W.2) is known to S. L. Gulati (P.W. 3), is no ground to disbelieve his statement. As regards the statement of Gurbachan Singh (P.W. 5) the learned trial Judge observed as follows:--
'According to the defendants, the import of lamp-holders manufactured by G.E.C. of England is banned and such lamp-holders are not available in the market. The fact is admitted by Shri Gurbachan Singh P.W. 5, who is an Electrical Engineer in the plaintiff company that since foreign goods are not easily available in the market, the plaintiff company had to go to the market to purchase lamp-holders manufactured by other manufacturers in India'.
This observation is based on mis-reading of the statement of Gurbachan Singh. I have gone through the statement of Shri Gurbachan Singh P.W. And I do not find that such statement is made by him. In cross-examination he only stated that he goes to the market to purchase lamp-holders manufactured by other manufacturers in India or outside because their customers demand lamp-holders of local manufacturers. He further stated that since foreign goods are not easily available in the market, therefore, they had to adopt this practice. He never stated that the G.E.C. lamp-holders are not available in the market. Therefore, the learned trial Judge has misread his statement. It was held by their Lordships of the Supreme Court in Chinna Krishna Chettiar v. Sri Ambal & Co; AIR 1970 SC 146 as follows:--
'Whether, if the proposed trade mark is used in a normal and fair manner and if similarly fair and normal user is assumed of the existing registered marks, will there be such a likelihood of deception that the proposed mark ought not to be allowed to be registered, is a question which has to be decided on a comparison of the competing marks as a whole and their distinctive and essential features.
Where a dealer sells snuff under a registered trade-mark and the word 'Ambal' is the distinctive and essential feature of that trade mark and that word fixes itself in the recollection of an average buyer with imperfect recollection, another dealer, also dealing in snuff cannot be allowed to get the trade mark registered, of which the word 'Andal' is a distinguishing feature, as there is a striking similarity and affinity of sound between the words 'Ambal' and 'Andal'.
The resemblance between the two marks must be considered with reference to the ear as well as the eye and ocular comparison is not always the decisive test. Therefore, even if there be no visual resemblance between the two marks, that does not matter when there is a close affinity of sound between the words which are distinctive features of the two marks.
Merely because the distinctive words used in both the marks have distinctive meanings it cannot be said that the phonetic resemblance does not lead to confusion, when it is likely that majority of the customers are not capable of understanding the fine distinction between the meaning of the two words'.
8. Keeping in view the said observations of their Lordships of the Supreme Court and keeping in view the findings recorded on issues Nos. 3 and 4, it is to be held that passing off action as averred by the plaintiff is proved.
9. For the reasons recorded above, the finding of the learned trial Judge on issue No. 5 is also reversed, and it is held that the defendants have been passing off their lamp-holders as those of the plaintiff-company. Therefore, the suit is decreed and the injunction restraining the defendants, their servants and agents from infringing the trade mark is issued. The defendants, their servants and agents are further restrained from putting up and offering for sale and selling and/or causing to be put up or offered for sale the lamp-holders not of the plaintiff's manufacture or merchandise or any wrappers in respect thereof bearing the marks A.E.C. or E. C. Without sufficiently distinguishing the same from the lamp-holders of the plaintiff-company. Consequently, the token damages of Rs. 5/- are also awarded to the plaintiff. The plaintiff is not entitled to have more damages because there is no evidence led as to how much loss the plaintiff has suffered. This appeal is, therefore, accepted and the judgment and decree of the learned trial Court are set aside. However, in the circumstances of the case, the parties have been left to bear their own costs throughout.
Prem Chand Pandit, J.
10. I agree.
11. Appeal allowed.