1. An application was made to the learned Judge by the plaintiffs for an interlocutory injunction restraining the defendant from passing off an umbrella on to the market which is alleged to be a colourable imitation of the plaintiffs' umbrella. We only differ from the learned Judge, and that with very great regret on one point that goes unfortunately to the root of this case. The learned Judge says:
I have examined the two umbrellas and, certainly from a mere appearance of the marks, I am not at all satisfied that even an ignorant purchaser would be deceived into taking one for the other.
2. With great respect we feel unable to take that view. One has got to see whether an ignorant purchaser is going to be in the position of the Court having the two things side by side and examining them critically. The purchaser probably trusts to his recollection of one or a description of it that has been given him, or, seeing it in the shop window, goes to the person selling the infringement, who ex hypothesi does not give him the two, the genuine one and the infringement, to choose from. Moreover, we notice this, the learned Judge in his order does not refer to the number appearing in the two umbrellas, 611 on the plaintiffs' umbrella and 6011 on the defendant's. We are very anxious to say as little as possible so as not to prejudice this case which will go to trial in the ordinary way, but a clearer prima facie case of deliberate intent to pass off it would be almost impossible to find. Why should three out of the four figures in the defendant's number it is not purely an arbitrary number Coincide with the plaintiffs' well-recognised number? The learned Judge's attention does not seem to have been drawn to that and probably that is why he refused the injunction.
3. With regard to the balance of convenience there can be no doubt that the plaintiffs' is a well-established article in the market. The defendant does not pretend that his article came on to the market at any more remote period than a year and a half ago, and the evidence with regard to that and with regard to his selling some of these goods of the plaintiffs is so utterly unsatisfactory and there is the plaintiffs' denial and the non-production of the invoice - that we do not accept it for a moment. There is no evidence to show how long it was when the plaintiffs got on to the track of these goods since they were put into the market. All that we know and can know is that they got on the track of them only in December, 1921. To allow the defendant with so new an article as that to disturb the state of things by putting on the market a whole supply which may turn out to be an infringement of the plaintiffs' rights would, to our mind, be much a greater inconvenience than to restrain the defendant for the few weeks adjournment during which the trial will be expedited and the slight difficulty of ascertaining by way of injury hereafter what the amount of measurable money loss he would incur by that short adjournment. In our opinion, the decision of the learned Judge must be reversed and an interlocutory injunction must be granted, subject to this, that the plaintiffs undertake to submit to an enquiry and to the payment of such damages as shall be found due upon that enquiry in the event of the defendant's actions being held not to be an attempt at passing off in derogation of the plaintiffs' rights. Costs will be reserved to the trial Judge.