1. This is an appeal in a passing off action in the Court of the District Judge of South Arcot. The defendant company against which a decree granting an injunction, ordering an account, and directing the delivery of the offending labels has been passed is the appellant.
2. The respondent which is a company registered under the English Companies Act suing by its attorney alleged that it had been for a considerable number of years manufacturing and selling throughout India a sewing thread named 'Eagley' with a distinctive label containing the figure of a bird, that the said device and name had become associated in the minds of the public and the traders with sewing thread made by the plaintiff and that the defendant put on the market for sale sewing thread with a label bearing the representation of a bird and the name 'Eagle brand' and that such use is calculated to deceive the trade and the public into the belief that when purchasing the defendant's goods they are purchasing the manufacture of the plaintiff. The defendant denied knowledge of the manufacture by the plaintiff of sewing thread using the label in question and stated that when informed of it by the plaintiff in November, 1942, the defendant, to avoid any complaint, substituted the word 'vulture' for the word 'eagle' and that the differences between the plaintiff's label and the defendant's label are so many and so large that no ordinary and reasonable trader 'could be deceived' into mistaking the defendant's label for the plaintiff's label. The defendant denied that the plain-tiff had any cause of action or was entitled to any injunction, account or damages.
3. On issue No. 1 the Court below has found that the plaintiff has acquired a right to the exclusive use throughout India of the label marked 'A' and the name 'Eagley' in connection with sewing thread and on issues Nos. 3 and 6 that the defendant's label is a colourable imitation of the plaintiff's label and trade name calculated to deceive any ordinary or reasonable trader or member of the public into mistaking defendant's thread for plaintiff's. On issue No. 2, however, the learned District Judge has held that D.W. 1, the managing director of the defendant company did not himself know about the existence of the plaintiff's trade mark, but added that this conclusion did not exclude the likelihood that the artist who designed the defendant's label had seen the plaintiff's label. On issue No. 7 it has been held that there is no evidence to show that the defendant company has itself sold or passed off its goods as those manufactured by the plaintiff. The findings on issues 2 and 7 have not been traversed in the appeal. The appellant challenges the correctness of the findings on issues 1, 3 and 6.
4. There is a reference in both the plaint and the written statement to certain applications made by the plaintiff and the defendant for the registration of their respective trade marks under the Trade Marks Act (Act V of 1940). It is however admitted that the case falls to be decided without reference to the provisions of that Act and merely on the basis that one party alleges and the other denies that there is passing off of goods, a right of action which is expressly saved by Sub-section (2) of Section 20 of Act V of 1940.
5. There has been considerable citation before us by the learned Counsel appearing on either side as to the points arising for determination in a passing off case. While it cannot be denied that on some points there was, at any rate in the past, some difference of opinion and while differences are also noticeable in the relative emphasis laid on the several considerations relevant in a case of this kind which is perhaps inevitable when different Judges deal with varying facts and express their conclusions each in his own words, it seems to us nevertheless that the principles which should govern the decision of cases of this description are now fairly well established and can be briefly stated.
6. The general principle which was founded on justice and equity is nowhere better expressed than in the following passage in Singer Manufacturing Co. v. Loog (1879) 18 Ch.D. 395, which has become classic.
No man said James, L.J., in that case is entitled to represent his goods as being the goods of another man; and no man is permitted to use any mark, sign or symbol, device or other means, whereby, without making a direct false representation himself to a purchaser who purchases from him, he enables such purchaser to tell a lie or to make a false representation to somebody else who is the ultimate customer.
In his speech in Leather Cloth Co., Ltd., v. American Leather Cloth Co., Ltd. (1865) 11 H.L.C. 523 : E.R. 1435 Lord Cranworth observed that,
the gist of the complaint in all these cases is, that the defendants, by placing the plaintiffs' trade mark or it may perhaps be added a colourable imitation of it on goods not manufactured by the plaintiffs, has induced persons to purchase them, relying on the trade mark as proving them to be of the plaintiffs' manufacture. This necessarily supposes 'he adeed' some familiarity with the trade mark.
To state the position completely it may also be mentioned that a plaintiff need not wait till the defendant's goods are purchased as his, but may maintain a quia timet action for the infringement of a trade mark but must in such a case make out a strong case to justify the conclusion that confusion would result from the appearance of the defendant's goods in the market (see Malayan Tobacco Distributors, Ltd. v. United Kingdom Tobacco Co. (1929), Ltd. (1933) 66 M.L.J. 588 (P.C.)
7. The plaintiff who alleges a passing off must first establish that the public has grown accustomed to associate the particular name and label with him as the manufacturer or dealer in the article (Mohamed Esuf v. Rajaratnam Pillai I.L.R. (1909) Mad. 402). There must be such an association between the number or the name or the label and the plaintiff as to indicate an understanding of the public that the goods bearing that number, name or label came from the plaintiff (see Barlow v. Govindram I.L.R. (1897) Cal. 364). Shep-herd, J., observed in Ebrahim Currim v. Essa Abba Sait (1900) 24 Mad. 163,
that a man can be said to have property in a trade mark only in a peculiar or a qualified sense because in order to establish an infringement he must prove the possibility of other persons being deceived.
8. The view was at one time expressed that a person who is deceived or is likely to be deceived may be a 'thoughtless' or an 'incautious purchaser.' Lord Kingsdown in Leather Cloth Co., Ltd. v. American Leather Cloth Co., Ltd. (1865) 11 H.L.C. 523 : 11 E.R. 1435, poses the question for determination as whether the trade mark used by the defendant is calculated 'to mislead incautious purchasers.' The same expression is used by Lord Blackburn in Johnston v. Orr Ewing (1882) 7 A.G. 219. In the same case at page 226 after refer-ring to one class of customers Lord Selbourne, L.C., goes on to refer to 'the more ignorant class of consumers' apparently describing them relatively to the other class which he previously dealt with. Similarly in Juggi Lal Kamalapat v. Swadeshi Mills Co., Ltd. (1928) 56 M.L.J. 282 : L.R. 56 IndAp 1 : I.L.R. 51 All. 182 (P.C.), Viscount Dunedin after stating that 'a person of such literacy as to have critical powers of observation would not be confused with the defendant's trade-mark' proceeds to observe that the trade-mark 'would be apt to be confused by the illiterate and unobservant.' In Payton & Co. v. Snelling Lamard & Co., Ltd. (1899) 17 R.P.C. 48, however, Romer, L.J., observed in the following manner in a well-known passage:
It seems to be a sort of popular notion of some witnesses that in considering whether the customers are likely to be deceived, you are to consider the case of an ignorant customer who knows nothing about, or very little about the subject of the action. That is a great mistake. The kind of customer that the Courts ought to think of in these cases is the customer who knows the distinguishing characteristics of the plaintiff's goods, those characteristics which distinguish his goods from other goods on the market so far as relates to general characteristics. The customer must be one who, knowing: what is fairly common to the trade, knows of the plaintiff's goods by reason of these distinguishing characteristics. If he does not know that he is not a customer whose views can properly or will be regarded by this Court.
9. In Thomas Bear & Sons (India), Ltd. v. Prayag Narain (1940) 2 M.L.J. 151 : L.R. 67 IndAp 212 : I.L.R. (1940) All. 446. (P.C.), the Privy Council pointed out that the test is whether a person exercising ordinary caution is likely to be deceived and not whether some ignorant and indiscriminating persons might not be deceived. In Leather Cloth Co., Ltd., v. American Leather Cloth Co. Ltd. (1865) 11 H.L.C. 523 : 11 E.R. 1435, Lord Cranworth stated that
no general rule can be laid down as to what is or is not a mere colourable variation. All that can be done is to ascertain in every case, as it occurs, whether there is such a resemblance as to deceive a purchaser who exercises ordinary caution.
10. The prevalent and in our opinion, the correct view is, therefore, that the resemblance must be such as to induce an average man exercising ordinary caution to suppose that in buying the defendant's goods he is buying what has been manufactured by the plaintiff.
11. It is again well settled that it is not enough for the plaintiff to show a mere possibility of deception. He must establish that there is a reasonable probability of purchasers being deceived [Barloo v. Govindram I.L.R. (1897) Cal. 364, Thomas Bear & Sons (India), Ltd., v. Prayag Narain (1940) 2 M.L.J. 151 : L.R. 67 IndAp 212 : I.L.R. (1840) All. 446 (P.C.), Malayan Tobacco Distributors, Ltd, v. The United Kingdom Tobacco Co. (1929) Ltd. (1933) 66 M.L.J. 588 (P.O.). This is expressed in slightly different language in Board & Son (Incorporated) v. Bagors Hutton & Co., Ltd (1916) A.C. 382 (a case of registration of a trade mark) a judgment of the House of Lords confirming the judgment of the Court of Appeal in Bagots Hutton & Co.'s Trade-mark In re (1916) 2 Ch. 103. It is there said that it must be proved that the defendant's mark is calculated to deceive and that a bare possi-bility of deception will not do.
12. It cannot be denied that deception may be by sound as well as by sight (see Johnston v. Orr Ewing (1882) 7 A.C. 219, and Juggi Lal Kamalapat v. Swadeshi Mills Co., Ltd. (1928) 56 M.L.J. 282 : L.R. 56 IndAp 1 : I.L.R. 51 All. 182 (P.C.).
13. It was at one time held that the opinion of persons more or less conversant with the trade can be given for proving the likelihood of deception (see Johnston v. Orr Ewing (1882) 7 A.C. 219). But the better view and the view which is binding on us is that expressed in Thomas Bear & Sons (India), Ltd. v. Prayag Narain (1940) 2 M.L.J. 151 : L.R. 67 IndAp 212 : I.L.R. (1840) All. 446 (P.C.) as follows:
There is no such person as an expert in human nature, and it is now well settled that a witness cannot be called to say that it is likely that purchasers of the goods will be deceived. This can only be a matter of opinion formed after the dispute has arisen and too often without any judicial consideration of the opposing contentions. On the other hand a person who is accustomed to buy the articles in question may be called to say that he would himself be deceived, and cross-examination will often show what weight should be attached to such a statement. While on the one hand it would be a mistake to suppose that the resemblance must be such as would deceive persons who would see the two marks side by side (see Seixo v. Provesende (1866) 1 Ch.A. 192); it must, on the other hand, be remembered that the customer to whose views the Court will have regard must be one who had some familiarity with the plaintiff's trade-mark and who knows the distinguishing characteristic of the plaintiff's goods.
14. The evidence in this case is mostly oral. The documentary evidence consists partly of the correspondence which passed between the plaintiff's agents in India, the Central Agency, Ltd., and the defendant between November, 1942 and March, 1943, the former asserting that the name and label used by the latter are likely to result in passing off the defendant's goods as the plaintiff's and the defendant denying that they had or would have that effect. The rest of the documentary evidence consists of orders for the plaintiff's products to which we shall refer in dealing with the oral evidence. The plaintiff examined seven witnesses in Court and five witnesses on commission at Bombay. The defendant's sole witness is its Managing Director, Robert Anderson, the first witness for the plaintiff who has been working as an assis-tant for 23 years in several branches of the Central Agency, Ltd., deposes that the trade-mark 'Eagley' is one of the favoured trade-marks of James Chadwick & Co., that 'Eagley' thread has been marketed in India since 1896, that it is found throughout India and that to the purchaser it signifies a product of James Chad-wick & Co. He further deposes that except the defendant nobody else to his knowledge has sold the sewing thread with the name 'Eagle' or with the figure of a bird. He also states that the plaintiff's thread is made up in reels or clubs, in cops or cones in varying lengths, but adds that the standard length of 'Eagley' sold in reels is 5,000 yards, that at present they are selling in cones and that he has no record here to show that they sold in reels. Judging, however, from the orders which have been placed on record and from the other oral evidence in the case it would appear that for a considerable number of years the plaintiff's 'Eagley' thread is being sold only in cones of 10,000 yards or 5,000 yards. P.W. 1 states in cross-examination that the plaintiff's thread can be used for any purpose and not merely for the making of banians. The evidence of the five Bombay witnesses is almost identical in terms and it is quite enough to take Gulamal Sadakali Unwala's evidence as typical. He states that his firm deals in sewing thread imported by the Central Agency. He identifies the plaintiff's 'Eagley' mark and says that he knows that the goods bearing the 'Eagley' mark are manufactured by Chadwick in England, that there is a great demand for 'Eagley' sewing thread and that both the wholesale and retail purchasers ask for this thread as 'Eagley' cone. When Exs. D and F are shown to the witness as the reels sold by the defendant he says that it would be possible' to pass off the goods bearing those marks as those of the plaintiff. In his opinion it makes no difference whether the thread is sold in reels or cones or otherwise. It is elicited in cross-examination that there is no resemblance between the plaintiff's thread and the defendant's, though in the opinion of the witness there is a great resemblance between the plain-tiff's 'Eagley' mark and the defendant's mark. It is unnecessary to refer to the evidence of the other witnesses examined in Bombay, some of whom are more emphatic than Sadakali Unwala to the extent of stating that in their opinion any-one seeing the mark on the defendant's goods would think that they have been manufactured by the same people who had manufactured the plaintiff's sewing thread. Mr. O.T.G. Nambiar, counsel for the respondent, has conceded, in our opinion, rightly that he cannot rely upon the last portion of the evidence in view of the decision in Thomas Bear & Sons (India), Ltd. v. Prayag Narain (1940) 2 M.L.J. 151; L.R. 67 IndAp 212 : I.L.R. (1940) ALL. 446 (P.C.), to which we have already referred.
15. There can be no doubt that the plaintiff's 'Eagley' thread has established a considerable reputation in this country and that for some decades it has been commanding a wide sale in the Indian markets. It must also be held on the evidence that has been adduced that the thread with the name 'Eagley' and the labels used by the plaintiff are associated in the minds of customers with Chadwick & Co.
16. It has been argued by the learned Advocate-General for the appellant that the market for the plaintiff's thread is different from the market for the defendant's. This has not been established. From the evidence of the Bombay witnesses and that of P.Ws. 1 to 6 it is clear that the plaintiff's 'Eagley' thread is put to a variety of uses, for knitting banians, for making ladies' clothes, for stitching and so on. Rajagopala Reddiar, the managing director of the defendant company who has been examined as D.W. 1, deposes that the defendant's thread is used for stitching clothes and not for banians. While it may be that much larger quantities of the plaintiff's 'Eagley' thread are used for hosiery, there can be no doubt that the markets for the two goods overlap and that both the threads can be used for stitching purposes.
17. It has next been argued by the learned Advocate-General that the plaintiff has not established that there is a reasonable probability of deception of customers by the use by the defendant-company of the words 'Vulture brand', together with the labels wound round the reels manufactured by them. It is pointed out that the defendant applied for the registration of the trade-mark 'Eagle brand' to the Registrar of Assurances, Calcutta, as early as 25th January, 1940, that in the following February they published a notification in the 'Hindu' that they are the owners and sole proprietors of that trade-mark and that in deference to an objection taken by the Central Agency, Ltd., the defendant company changed the name' of the trade-mark from 'Eagle' to 'Vulture' in December, 1942. The dissimilarities between the two labels are also pointed out. There can be no doubt that the labels used by the plaintiff and the defendant have several points of difference. The plaintiff's label is circular while the defendant's is rectangular. The former is in colour litho print while the latter is printed in ordinary black. The defendant company's name is also displayed in their label. There is a differ-ence also in the appearance of the two birds. It is not possible to accept the defendant's suggestion that the figure in his label represents a 'vulture' as it is admitted that the same figure was used even when the defendant described his trade-mark as 'Eagle' brand and though the name was subsequently changed from 'Eagle brand' to 'Vulture brand' the figure was retained without any alteration. The plaintiff's label is printed on neat white paper while the defendant's is printed on brown paper. The plaintiff's thread is sold in Indian markets only in cones of 10,000 or 5,000 yards. The defendant's thread is sold in cylinders with varying lengths but never exceeding 1,000 yards. While, as stated, it must be taken that there is a market in which both the plaintiff's and the defendant's thread are offered for sale, it cannot at the same time be overlooked that there is considerable disparity in prices. Venkatesa Iyer (P.W. 3) who is an employee of Messrs. S. Doraiswami Mudaliar & Sons, Madras, a firm dealing in both threads, states that the plaintiff's thread costs 2 or 3 times as much as that of the defendant. No doubt a plaintiff's grievance in a passing off action very often is that the defendant is selling cheaper goods passing them off as the plaintiff's; but if the disparity of prices is so large as to make the customer pause and think whether he is buying the plaintiff's goods at all, it seems to us that this circumstance cannot be ignored in deciding whether there is a reasonable probability of deception. It is unnecessary to refer to the letter press on the labels which is of course different but to which much importance need not be attached, as the customer is not expected to place the two labels side by side and make a comparison of their appearance or their contents, the test in all these cases being whether the general impression left in the mind of a customer who had previously bought the plaintiff's goods is such that he is likely to acept the defendant's goods when they are offered to him in the belief that they are the plaintiff's. When we speak of a label we are not of course confining ourselves to the visible representations of the trade-marks of the two parties. When the plaintiff's goods are sold by a certain name and under a certain label the cumulative effect of what is seen and what is heard provides the criterion. Mr. O.T.G. Nambiar, learned Counsel for the respondent, has argued that the most distinctive part of the plaintiff's label is the figure of a bird and that the customer is likely to remember only that figure and the word 'Eagley' and that having regard to the fact that the defendant's label also contains the figure of an eagle and the defendant's goods are sold as 'Vulture brand,' there is every chance of the purchasers taking the defendant's goods for the plaintiff's.
18. It is necessary now to examine the evidence in the light of the respective con-tentions. It must first be pointed out that the Bombay witnesses and P.Ws. 1, 2, 4, 5 and 6 have always dealt only with the plaintiff's goods and never with the defendants. P.Ws. 7 and 8 have similarly handled only the defendant's goods and have never handled the plaintiff's. The only witness whose firm has been trading in both the plaintiff's and the defendant's goods is P.W. 3 and in our opinion therefore considerable importance attaches to the evidence of this witness.
19. Dealing with the several classes of purchasers of the plaintiff's goods it cannot be denied that the wholesale and retail dealers of the status of the Bombay witnesses cannot be deceived by the supply of the defendant's goods when they ask for the plaintiff's, nor can it be maintained that buyers like the Common Wealth Trust, Ltd. or Madura Knitting Co., or Sri Krishna Rajendra Mills, Ltd., who require the plaintiff's goods for their own manufactures can possibly be the victims of any deception.
20. As regards tailors buying the sewing thread for their shops or householders buying it for their domestic needs a distinction must necessarily be made between those who are acquainted with the English language and those who are not. It would be difficult to suppose that the former class would accept the defendant's goods as the plaintiff's. Though the defendant started in 1940 calling his goods 'Eagle brand' we must for the purpose of this case proceed upon the footing that since 1942, he has been describing them as 'Vulture brand'. The statement in the evidence of P.W. 7 that after the defendant changed the name from ' Eagle ' to ' vulture ' the English knowing customers would ask for ' Vulture mark must be accepted as correct.
21. The evidence as to the residuary class of individual buyers unacquainted with the English language is far from being definite. P.W. 2 is a travelling representative of the Central Agency, Ltd., who, as already stated, handle the goods produced by Chadwick & Co., in India. His mother-tongue is Tamil. He admits that no order, whereby he means a written order, has been placed, with the Central Agency in Tamil. The orders are always taken in English. He says that when the orders are oral the Tamil customers ask for the 'Kazhugu' mark. He is unable to give the Tamil equivalent of 'Vulture'; but it may be assumed that the word 'Kazhugu' is the Tamil equivalent for the English words 'Eagle' and 'Vulture'. (See Tamil Lexicon published by the University of Madras). In answer to a question by Court, P.W. 2 states that in Telugu districts people call it 'Pakshi mark or Garuda mark'. P.Ws. 7 and 8 are witnesses from Guntur and Kistna districts. P.W. 7 states that those unacquainted with English call the defendant's goods 'Gadda' or 'Garuda', that they are sold under the name of 'Pakshi mark' or 'Garuda mark' and that notwithstanding the change of the English name for the defendant's goods from 'Eagle brand' to 'Vulture brand', those who do not know English still call them 'Garuda' mark. P.W. 8 does not refer to the Telugu equivalents of the word 'Eagle' or 'Vulture'. His evidence does not impress us as sufficiently definite or accurate. His statement for instance that his firm continues to sell the defendant's goods to the consumers under the name 'Eagle' even after the defendant altered the name to 'Vulture' cannot be accepted if he is referring to purchasers who know English. The evidence of P.W. 7 with regard to this class of customers seems more probable. Customers who know English would not only find the words 'Vulture brand' on the defendant's label, but would also notice that the manufacturers are the defendant company. P.W. 8 qualifies in cross-examination what he has stated in chief examination and admits that after the name 'Eagle' was changed into 'Vulture' his firm ordered goods with the 'Vulture mark' and was so supplied.
22. The evidence of P.W. 3 is much more important and reliable. He is the only witness who had occasion to buy and sell the plaintiff's goods and the defendant's. In his examination in chief he states that if a customer came to his firm and asked for 'Eagle' thread they would first show the cheaper variety in the defendant's article. If the customer wanted a superior quality then they would show the plaintiff's thread. In his cross-examination he says that the defendant's goods are inferior in quality and are being used for stitching shirts, coats, etc., while the plaintiff's goods are being used for making hosiery; but he adds that if one cannot be had, the other thread can be used. The customers would come and ask for 'Pakshi nule' and the witness's firm would first offer the defendant's products. If they asked for a superior kind, they would then show the plaintiff's goods. The witness refers to a difference in the posture of the birds in the two designs. It is true that there is some difference, but no importance need be attached to this as a purchaser cannot be expected to make a detailed comparison of the two labels before buying. The most significant part however of the evidence of P.W. 3 consists in his answer that, If a purchaser had once bought the plaintiff's goods he would know the difference at once if the defendant's goods are offered. This seems to us to put the whole case in a nutshell. If the true test is as has been laid down in the cases how a person who once bought the plaintiff's goods would re-act when the defendant's goods are offered to him; the witness states definitely that he would at once notice the difference. Mr. Nambiar relies on a statement occurring in the cross-examination of P.W. 8, We can dispose of the defendant's goods only with the name ' Eagle '. The customers like and ask for 'Eagle' and we supplied the defendant's goods and the customers got off. We have already had occasion to refer to the evidence of this witness as somewhat unconvincing. The witness does not differentiate between those who are acquainted with the English language and those who are unacquainted with it. In fact he does not speak of the latter class at all and as regards the former class his evidence cannot easily be accepted, particularly in view of the evidence of P.W. 7 which sounds true that English knowing customers would ask for 'Vulture mark'. The evidence of P.W. 3, that the difference in the quality of the two threads is so marked, that customers ask for a superior article after the defendant's thread is shown to them also reveals that the one cannot easily be mistaken for the other. P.W. 3's evidence does not show that his firm ever thought they would be guilty of deception if they offered the defendant's goods when asked for 'Eagle brand'. Evidently they were under the impression that the defendant's thread is not likely to be assumed to be the plaintiff's and having regard to the relative prices and qualities the two threads were apparently treated as being in different classes.
23. On the whole we have come to the conclusion that the evidence offered on behalf of the plaintiff is very meagre and that the plaintiff has not succeeded in making out that there is any probability of a purchaser exercising ordinary caution being confused or deceived into buying the defendant's goods under the impression that they are the plaintiff's.
24. One more observation has to be made. We cannot accept what Mr. Nambiar seemed to suggest at one stage in the course of his argument that we should have regard only to the name 'Eagle' and not to the label. In the first place in para-graph 5 of the plaint, it is stated that
the said device or trade mark and the name ' Eagley' have become associated in the minds of the public and the traders and merchants with sewing thread made and sold by and as the merchandise of the plaintiff.
The case itself proceeded on the footing that the label also plays an important part. This is apparent from the evidence of the Bombay witnesses who describe the design of the label and who also offer their opinion that the mark on the defendant's goods is such as to make the purchasers mistake them for the plaintiff's goods. As has been pointed out, in Barlow v. Gobindram I.L.R. (1897) Cal. 364, where numbers were used in conjunction with striking object designs and in Mohamed Noordin v. Abdul Kareem & Co. 48 R.P.C. 491, where a name was used along with a picture, if the plaintiff claims that the goods are dealt with by the number alone or by the name alone divorced from the design or the picture, it is for him to make it out and in the absence of evidence that the design or picture is of no consequence, the legitimate inference should be that it played an important part along with the number or the name as the case may be. It seems to us that having regard to the pleadings in the case and also to the probabilities in cases of this kind the cumulative effect of the name and the figure falls to be decided.
25. We hold agreeing with the learned District Judge in this regard that the goods described as 'Eagle brand' with the distinctive label used by the plaintiff company have become associated in the Indian market with Chadwick Co.; but we are unable to accept the conclusion of the learned District Judge that there is such a resemblance in the name and label of the defendant's goods as to render reasonably likely or probable that customers intending to buy the plaintiff's thread would be so confused and deceived as to mistake the defendant's article for the plaintiff's. The question is one of fact on which evidence is essential and bearing in mind the guidance that is afforded by the several decisions to which reference has already been made we have come to the conclusion that the plaintiff has failed to make out his case as to the second and essential ingredient in a passing off action, viz., likelihood of deception of a purchaser exercising ordinary caution.
26. In the result we allow the appeal and dismiss the plaintiff's suit with costs throughout.