Arnold White, C.J.
1. This appeal has been strenuously argued by Mr. Govindaraghava Aiyar. I see no reason to quarrel with his statement of law with regard to the question we have to determine. I think it may be said to be now well settled that a dealer in, or a manufacturer of a particular article who adopts a name for that article, whether the name be a purely fancy name or a descriptive name, cannot restrain another dealer from using the same name simply upon the ground chat the article so named has acquired a reputation, even though it may be that the public have grown accustomed to buy the article in question only relying on the name and without examining the quality of the article. For a man to be entitled to restrain another from using a particular name with reference to a commodity he must, I think as the law stands, be in a position to show that the public have grown to associate that particular name with himself as the manufacturer of, or dealer in, the article. I do not know that one need refer to authorities at any length. I may refer to a decision of the House of Lords in Reddawag v. Banham (1896) A.C. 199 See too John Smidt v. Reddaway & Co. 32 C.K 401, The House of Lords' case was a very strong one because there the name which was adopted was a true description of the particular commodity. We find the law laid down, I think, quite accurately, by Mr. Justice Sale in Barlow v. Gobindram 1 C.W.N. 281. He puts it thus. I quote the head note: 'To show that a particular trade number has acquired a reputation in the market and that purchasers buy the goods by that number and not from an examination of the nature or quality of the cloth is not sufficient to establish the right of exclusive user of that number. There must be such an association between the number and the firm's name as to indicate in the understanding of the public that the goods bearing that number came from that particular firm.' The same view was taken in a later Calcutta case. Munnalal Serowjee v. Jawala Prasad 35 C.k 311. And as regards our own Court, we find the law laid down in substantially the same terms in Nooroodeen Sahib v. Charles Sowden 15 M.L.J. 45. Therefore, it seems to me the law does not present any serious difficulty in the case.
2. Of course it must be borne in mind that we are dealing with this case in second appeal and the question we have to consider--and really the only question we have to consider--is 'Has the learned Subordinate Judge found that the reputation acquired by this particular brand of cigars--the 'Albert brand'--was acquired in connection with cigars bearing that brand which were manufactured by the plaintiff, or, in other words, has the public come to associate the name of the plaintiff with that particular brand?'
3. Now let us just see what the findings of the learned Subordinate Judge are. In paragraph 7 of his judgment he says--'Plaintiff's cigars had acquired a wide reputation under this name throughout India and he sold them by thousands and lakhs between 1887 and 1890.' Mr. Govindaraghava Aiyar asked us to regard that finding as merely a finding that cigars known as 'Albert' cigars had acquired a wide reputation under this name throughout India. Well, if that be what the learned Subordinate Judge meant, it seems to me the reference to the plaintiff is meaningless. What he finds is that the plaintiff's cigars had acquired a wide reputation. He seems to find that these cigars known as the 'Albert' brand had acquired a wide reputation as the plaintiff's cigars and not merely as cigars known as the 'Albert' brand. That this is what the learned Subordinate Judge meant seems abundantly clear when we read this paragraph 7 by the light of his further findings in the case.
4. Turning to paragraph 9, we find 'plaintiff's case is that his cigars became famous under that name and that the defendant should not be allowed to put up his cigars as those of the plaintiff by adopting the same name and thereby diverting his customers and depriving him of the profits which he might make by the sale of his own 'Albert cigars.' And then, in Paragraph 12, we find 'taking the evidence, oral and documentary adduced in this case as a whole, there can be no doubt that plaintiff has succeeded in proving that he was the first man in the market with the name of 'Albert' for the cigars of his manufacture and that his cigars had acquired a reputation as such before the defendant began to pass off his cigars under the same name.' I think, therefore, we have findings that the cigars had acquired a reputation as cigars manufactured by the plaintiff's firm. Mr. Govindaraghava Aiyar has asked us to say that the judgment shows that the learned Subordinate Judge had not addressed his mind to that aspect of the case. Taking the judgment as a whole, I see no reason why we should hold that the learned Subordinate Judge has not considered this question. I think this second appeal should be dismissed with costs.
Krishnaswami Aiyar, J.
5. I agree. I am not satisfied with the discussion by the Subordinate Judge of the evidence bearing on the question as to whether the plaintiff has acquired a right in the trade-mark and whether the defendant has been guilty of an infringement of the same. Mr. Govindaraghava Aiyar has asked us to send the case back for a further finding on the ground that the evidence has not been properly discussed. But I think the finding is clear; and it is not open to us to send a case back merely because the Subordinate Judge has not discussed the evidence in as satisfactory a manner as he should have done.