1. This is a passing off action. The trial ran its tedious course for many days but in my opinion it is a very plain case. The suit relates to labels attached to packets or bundles of biris. A biri is an inferior substitute for a cigarette and is composed of rolled tendoo leaves with a little tobacco inside. Many decisions were canvassed before me at the trial but the law applicable to the circumstances of this case is clear and simple and the decision will be seen to turn upon the issue whether the plaintiffs' or the defendant's labels were the first to be put on the market.
2. The plaintiffs' case is that the defendant's labels (Exs. 10 and 4) are colourable imitations of the plaintiffs' label, Ex. T. They claim that the word 'Mohini,' the registered number '247' and the figure of a woman upon Ex. T are distinctive marks of the plaintiffs' goods and together make up Ex. T which is a device distinctive of the biris sold by them. The defendant admits that the registered number 247 is a distinctive mark of the plaintiffs' biris. He also admits that the word 'Mohini' and the figure are distinctive marks of the plaintiffs' biris but he claims that the word 'Mohini' and the figure have long been used by him in connexion with the sale of his biris and that his label (Ex. 10) was upon the market and had obtained a reputation in connexion with his biris long before the plaintiffs' label (Ex. T) was put upon the market. The defendant; however does not claim an exclusive-right to the use of the word 'Mohini' or the figure of the woman but claims a concurrent right with the plaintiffs to the user of those marks.
3. The plaintiffs' case is a simple one, It was stated on their behalf that in> 1912 the firm of Moolji Sicca & Co. started business in Calcutta and that in 19 13 biris were sold by the plaintiffs loose and not done up in packets or bundles. In 1914 Kalyanji a partner of the plaintiff firm saw in the shop of one Joshi in Bombay a coloured lithograph of a well known picture by a Bengali artist, Banerji by name, known as Durbasha's Wrath. The plaintiffs determined to initiate anew method of selling biris, that is to say, they decided to sell them not loose but done up in packets of 25 and bundles of 500. For the purposes of their business they decided to use a label with the figure thereon of Sakuntala taken out of Mr. Banerji's picture and to put on the label above the picture the word 'Mohini' which means 'dear to the heart' or 'charming.' Accordingly, Ex. T was produced by Joshi for the [plaintiffs, and on 16th March 1915 a [declaration on behalf of the plaintiffs was made before the Chief Presidency Magistrate of Calcutta declaring that this was the label which they had adopted for use in their business. There are no Trade-mark Acts in this country but a declaration of this description serves a useful purpose as being some [evidence of the genuineness of the mark which is the subject-matter of it. On 16th May 1916 the label (Ex. T) was affixed to the declaration. The plaintiffs asserted that before 1919 nobody other than themselves so far as they knew sold biris in packets and the defendant in his evidence admitted that nobody other than the plaintiffs and the defendant himself before 1919 had sold biris in packets. In the city of Calcutta the class of biri in suit which relatively is a cheap and inferior one is not sold, a more expensive biri being bought by persons who smoke biris in the city of Calcutta and it is the common case of both parties that the biris with which the Court is concerned in this case are sold to dealers for resale in the mofussil.
4. The defendant further admitted that at the present time the biris sold by the plaintiffs under the label Ex. T are well known in the market and have an established reputation, Ex. T being distinctive of the brand manufactured by the plaintiffs. He does not admit, however, that in 1919 the plaintiffs had established under Ex. T a reputation in the market such that Ex. T would denote goods manufactured by the plaintiffs.
5. I find upon the evidence that from 1916 onwards the plaintiffs' biris have been sold sometimes as 'Mohini' biris sometimes as 'Mohini 247' and sometimes as '247.' I further find that in 1919 the plaintiffs had acquired a reputation under Ex. T for the biris manufactured by them and I also find that the word 'Mohini' in 1919 then indicated in the market goods belonging to the plaintiffs and that '247' also indicated goods manufactured by-the plaintiffs, as also did the figure of Sakuntala on Ex. T. I am satisfied upon the evidence that by 1919 Ex. T had acquired a reputation that would indicate to customers buying biris that biris bearing that label were of the plaintiffs' manufacture. In my opinion the word 'Mohini' the number '247' and the figure were all ingredients in a distinctive device which denoted biris manufactured by the plaintiffs. (His Lordship here considered the evidence in support of the above observations and proceeded). In my opinion in those circumstances the law which is to be-applied was laid down by Lord Herschell in Reddaway v. Banham (1896) A.C. 199 at p. 209:
The principle which is applicable to that class of oases was in my judgment well laid down by Lord Kingsdown in Leather Cloth Co. v. American Leather Cloth Co. It had been previously enunciated in much the same way by Lord Langdale in the case of Croft v. Day. Lord Kingsdown's words were as follows : 'The fundamental rule is that one man has no right to put off his goods for sale as the goods of a rival trader and he cannot therefore (in the language of Lord Langdale in the case of Perry v. Truefitt) be allowed to use names, marks, letters, or other indicia, by which he may induce purchasers to believe that the goods which he is selling are the manufacture of another person.' It is in my opinion this fundamental rule which governs all oases, whatever be the particular mode-adopted by any man for putting of his goods as those of a rival trader, whether it is done by the use of a mark which has become his trade-mark or in any other way. The word 'property' has been sometimes applied to what has been termed a trade-mark at common law. I doubt myself whether it is accurate to speak of there being property in such a trade-mark, though no doubt some of the rights which are incident to property may attach to it. Where the trade-mark is a word or device never in use before, and meaningless, except as indicating by whom the goods in connexion with which it is used were made, there could be no conceivable legitimate use of it by another person. His only object in employing it in connexion with goods of his manufacture must be to deceive. In circumstances such as these the mere proof that the trade-mark of one manufacturer had been thus appropriated by another would be enough to bring the case within the rule as laid down by Lord Kings-down, and to entitle the parson aggrieved to an injunction to restrain its use. In the case of a trade-mark thus identified with a particular manufactory the rights of the person whose trade-mark it was would not, it may be, differ substantially from those which would exist if it were, strictly speaking, his property.
6. Now none of the essential ingredients of Ex. T are descriptive of anything. By themselves or in combination they are meaningless, except as indicating the goods of the plaintiffs as I hold they do. In such circumstances, the law as laid down in the passage which I cited covers the present case, for Ex. T is meaningless except as a device distinctive of the plaintiffs' biris.
7. The next question that arises is:
Are the defendant's labels (Exs. 10 and U or either of them), if used with biris that are put upon the market calculated to delude persons who seek to buy biris of the plaintiffs' manufacture into thinking that they are buying the plaintiff's goods when they are buying biris with either Ex. 10 or Ex. U?
8. Now, in considering that question I have to form my own opinion as to whether Exs. 10 and U in such circumstances are calculated to deceive buyers of biris after looking at the plaintiff's label and the defendant's labels, and also bearing in mind any relevant evidence there may be to the effect that persons buying the defendant's goods tinder labels 10 and U were in fact deceived into thinking that they were buying the plaintiff's goods.
9. There is very little evidence of actual deception; indeed, the evidence of actual deception is so exiguous that I disregard it. Both the plaintiffs and the defendant sell biris to dealers, and it may be that a dealer might not be deceived by the defendant's labels. But that does not conclude the case in favour of the defendant, for the persons whom I have to consider in this connexion are the persons, sometimes called the unwary or the ignorant ultimate buyers, who for the most part belong to the lower classes of the people, and nearly all of whom are illiterate. Apart from any relevant evidence there may be upon the record with respect to actual deception (and for the purposes of this judgment I disregard and leave out of consideration any evidence of or in connexion with actual deception that there may be on the record), and confining myself to a consideration of the three labels, that is Ex. T on the one hand and Ex. 10 and U on the other, without doubt or hesitation I come to the conclusion that Exs.10 and U are calculated to deceive such persons as are accustomed to buy and to smoke biris of the sort that form the subject-matter of this suit. I do not require oral or extrinsic evidence upon such a matter as that. No reasonable person, in my opinion, looking at Ex. T on the one hand and Exs. 10 and U on the other, can have any doubt that illiterate persons who form the great preponderance of the buyers of these biris would be likely to be deceived into thinking that goods bearing the label Exs. 10 or Ex. U were goods of the manufactory of which Ex. T is the distinctive label, res ipsa loquitur. If ever there was a case in which it would be safe to say that the unwary customer would be likely to be deceived, to my mind the present case is that case. (His Lordship here reproduced Q. 399 and proceeded). Under those circumstances prima facie the plaintiffs are entitled to a decree. I now desire to say something about the circumstances out of which this suit has arisen. In 1919 the plaintiffs filed a suit against one Bhailal Bikhabhai, and in that suit the defendant filed an affidavit on 26th May 1919. That affidavit was sworn four days after a letter had been sent to the defendant by an attorney on behalf of the plaintiffs. Kanji, in his evidence, has stated that in the course of that suit (which was a passing off action against Bhailal Bikhabhai), the plaintiffs received information that the defendant was violating their rights in connexion with Ex. T, and the plaintiffs therefore, through their attorney, sent the following letter to the defendant:
9, Old Post Office Street,
Calcutta, 23rd May 1927.
Messrs Bhola Meah & Co.
71/2, Canning Street.
Re : Mohini Biri
I am informed by Messrs Moolji Sicca & Co. of No. 51 Ezra Street, Calcutta the sole manufacturers and proprietors of Mohini biris and the sole proprietors of the get up and label containing the picture of a female form with the words Mohini Biri that you have prepared labels bearing same and similar name under get up similar to that of my clients which is a colourable imitation of my clients said get up and trying to pass oft the same in collusion with designing individuals as and for the biris of my clients' manufacture with a view to cause serious loss and damage to ray said client.
In these circumstances I am instructed to call upon you (which I hereby do) and require of you forthwith and immediately to desist from such nefarious practice or otherwise my instructions are peremptory to move the Court in the matter. Please treat this as urgent.
Sd. Surendra Chunder Ghose
Attorney-at-law and Attorney
for Messrs. Moolji Siooa & Co.
10. Now, ultimately it was not disputed for the learned Counsel for the defendant that that letter was written and sent by the plaintiffs to the defendant. It was however denied that the letter was received. I think that it is inconceivable in the circumstances that the plaintiffs should have taken no further steps in the matter if they received no answer to that letter, and four days later in the affidavit to which I have referred the defendant stated in para. 3 that
my firm manufactures and sails biris with labels with configurations of female form printed on it known as Mohini Sakuntala.
11. Why should the letter have been written and sent if it was not to be followed up by some action? Kanji stated that after a consent decree had been passed in the Bhailal Bikhabhai action he saw the defendant in the Court-house, and that the defendant, being threatened with a suit, promised to desist from using any label which was a colourable imitation of Ex. T, and further promised to buy Mohini biris from the plaintiffs. Strong corroboration of Kanji's evidence is to be found in the fact that on 31st October 1919 the defendant bought 70,000 Mohini biris from the plaintiffs, and continued to buy biris in 1920 and 1921 and it may be from time to time afterwards. Kanji stated that, having this undertaking and having obtained the defendant as a prospective customer of the plaintiffs' goods, they took no further steps in the matter. He further stated that the plaintiffs at that time had no information that in 1919 Kalumia had registered Ex. 10 in the police Court and he added that the first information they received of such registration was in the course of the present proceedings.
12. It was alleged on behalf of the defendant that the plaintiffs ought to have taken steps either to prosecute or to sue the defendant in 1919. Nobody can live long in this country without noticing that there are a good many colourable imitations of genuine articles to be seen in Calcutta, and worthless and impecunious men of straw would not be slow in seeking to imitate Ex. T, for since 1916, when the plaintiffs commenced to sell these biris in packets of 25 with Ex. T, their success in business has been phenomenal. A glance at the chart showing an abstract of their sales from 1915/1916 to 1926 is evidence enough of the success of the venture into which they had entered. It was only to be expected that, becoming aware of the success which had attended Ex. T rogues would be found prepared, if they could, to take advantage of the successful mark which the plaintiff had established. One of those rogues, in my opinion, was the defendant. In 1919 there can be little doubt that the defendant's business was on a small scale, carried on in a little shop which we are told is about 2 ft. broad, at 71/2 Canning Street, the business having been started in circumstances which are somewhat obscure. Kalumia, the defendant's brother, had stated in his declaration in 1919 that he had carried it on since 1900, but Ramjan gives a different account of its origin. When the business started, and how it started, is not very clear. Learned counsel for the defendant, acting no doubt on instructions, stated that Kalumia's story as set out in the declaration of 1919 was 'wholly untrue.' I regret to say that I can give no credence to any statement either of the defendant Ramjan, or of Kalumia, except in so far as the statement is one against his interest. That the business was a small one is clear enough, and the boy Ramjan Ali, as he then was, when he took over the business in 1914, found that the value of the biris in stock was only Rs. 4/5,000. That is the sort of impecunious person whom it is urged that the plaintiffs must prosecute or sue forthwith so soon as they discover that he is guilty of piracy at the risk of losing their rights in Ex. T.
13. But in such circumstances the person who is entitled to the mark must be guided by reason and good sense. It may not be worth while to spend money on every man of straw who comes in your way, and in my opinion it was natural and reasonable that the plaintiffs in 1919, having obtained the undertaking from the defendant, and finding that the defendant was prepared apparently to make good his promise to purchase goods from them, should refrain from taking further steps in the hope that the defendant in the future would not violate their rights : see Per Russell, C.J., in Rowland v. Michell 14 R.P.C. 43.
14. Information was received in 1921 by the plaintiffs that there had been some further piracy of Ex. T on the part of the defendant, and I find that in 1921, in company with his attorney, Kanji went to the defendant's shop, but found nothing wrong. It is stated on behalf of the defendant that when Kanji with his attorney went to the defendant's shop in order to find out whether there had been any infringement of Ex. T he saw bundles of biris exposed with Ex. 10 attached to them, and yet that Kanji did nothing. It is an incredible story. Why did Kanji go to the shop? In order to discover (if it was the fact) the very thing which the defendant had exposed for all to see. And yet he does nothing. I find upon the evidence that when Kanji went with the attorney in 1921 to the defendant's shop at 71/2 Canning Street, there were no bundles on view bearing Ex. 10 upon them.
15. In 1924 the plaintiffs were informed that a number of Ex. T lablels had been stolen at Tumsar Road station, and they obtained a search warrant because they had received information that the defendant had some of their labels in his possession; and they not unnaturally drew the inference that the labels that the defendant had in his possession were some of the labels that had been stolen from Tumsar Road. Kanji went to the defendant's shop with a Police Inspector and searched the premises. Apparently two bags of biris were found with the plaintiffs' label on them, but Kanji was unable to say whether the biris were the plaintiffs' or the defendant's, and Kanji was told that the defendant had got these bags from one Emanali Biswas, It was contended however on behalf of the defendant that biris were found with the defendant's label upon them and a witness was called who stated that when these labels were seen by Kanji, Kanji said : 'Oh, these are like my labels,' but that he did nothing more. Certain entries in a book were tendered, which, it was stated had been initialled by the Inspector relating to Mohini Sakuntala biris. I do not believe the defendant's story on this matter, I do not believe the witnesses who were called to corroborate it, and I am the less disposed to accept the defence story as to what took place at the visit of Kanji with the Inspector in 1924 because not one word of this suggested admission by Kanji was ever put to Kanji himself in the course of cross-examination.
16. In 1926 the plaintiffs in the course of an investigation into alleged infringements at Dacca and Rungpur received information that the defendant was again infringing Ex. T. Those proceedings took place in 1926, and the Rungpur prosecution, so far as I recollect, concluded in August 1927. On behalf of the defendant it was contended that to have waited all that time before prosecuting or suing the defendant was inexcusable. Kanji's answer was that as the defendant had agreed to their terms after the decree in the Bhailal Bhikabhai action he waited until the result of the Rungpur or Dacca cases was known as he thought that the defendant might then agree to desist from further infringement. However that was found not to be the case, and in September 1927 the present suit was filed. That is the plaintiffs' case.
17. I heard the plaintiff and Kalianji in the witness box, and the impression which I gained from their evidence and the manner in which they gave it was that they were witnesses of truth. I accept their evidence and that of the witnesses who were called to support it. The result is that, inasmuch as it is alleged and asserted by the defendant that since 1919 he has been selling biris in large quantities, the packets and bundles bearing Ex. 10l or Ex. U, prima facie the plaintiffs are entitled to relief.
18. What is the defence? The defendant, as I have stated, does not claim the right to restrain the plaintiffs from using Ex. T, but that is not because he admits that he never had a right to do so, but because it is conceded that he knew of the large sales of biris with Ex. T since 1919, and took no steps to assert his rights, and therefore he cannot now be heard to resist the plaintiffs' claim to use Ex. T. He says, however:
If I had asserted my rights in due course I could have restrained the plaintiffs from using Ex. T, because I had upon the market a label substantially like Ex. 10 for years before 1915, and as my label (which the plaintiffs have copied) was on the market first, I am entitled to a concurrent right with the plaintiffs to use Ex. 10 and since 1922 also Ex. Q.
19. The decision of the case therefore turns upon the question : Did the defendant use Ex. 10 before 1915 or at any rate before 1916, when the plaintiffs first put biris with Ex. T on the market? Now, what are the probabilities? It is the common case of both parties that either the plaintiffs' label Ex. T is a copy of Ex. 10 or Ex, 10 is a copy of the plaintiffs' label, and that the original picture from which the figure on both was taken was Banerji's painting Durbasa's Wrath. Which was first in the field, and which was a copy of the other? One would expect to find that the first person who took a copy of Sakuntala from Durbasa's Wrath had taken an exact copy, and if somebody else afterwards was minded to make a colourable imitation of the first copy that he had produced the copy with such differences therein as he thought might enable him to steer clear of the wind. In this case the copy of the original picture is that on the plaintiffs' label Ex. T whereas on Ex. 10 the figure is reversed. Again, one would have expected when the first copy was taken that the figure would be taken as it appears in the original painting and that the person seeking to make a colourable imitation of the first copy would make some alteration in the original figure and its surroundings, The true copy of the figure and the steps upon which the figure is sitting was on the plaintiffs' label, whereas in the figure in Ex. 10 there were two strange alterations from the original, viz. the ends of the steps are rounded off, and in the hands of the lady is placed a fishing rod. The defendant, in his evidence, laid emphasis upon this alteration and stated that Ex. 10 came to be known as 'Chip Mohini.' So far as the taking of the copy from the original picture is concerned, the-probabilities, as it seems to me, point to Ex. T as being the first copy that was taken from the original. (After considering carefully the evidence, the-judgment concluded). The result is that I find that the plaintiffs had acquired a. reputation for their distinctive device Ex. T in the market before 1919, and that Ex. 10 was not in existence or put upon the market before 1919.
20. In my opinion the defendant has deliberately and fraudulently created Ex. 10 and Ex. U with a view to deceive unwary customers or buyers of biris from him into thinking that in buying the defendant's goods under Exs. 10 and. U they were buying those manufactured by the plaintiffs. Notwithstanding some inconspicuous differences in the get up of the labels I have no doubt that the defendant's labels were calculated to deceive purchasers of biris. By stages even those unsubstantial differences were being obliterated from the defendant's label, for, first, the rounded edge was replaced by steps, and then the number 395 was changed into 2047; afterwards the full size O is found to be shrinking, while 'Mohini Sakuntala' gives place to 'Monmohini.'
21. The defendant, no doubt, has sold large quantities of biris since 1919 with, labels Ex. 10 and Ex. U, and he claims a concurrent right to use those labels with the plaintiff's right to use Ex. T. I adopt the language of Lord Justice James:
It has been said that one murder makes a villain and millions a hero; but I think it would hardly do to act on that principle in such matters as this, and to say that the extant.; of a man's piratical invasions of his neighbour's rights is to convert his piracy into a lawful, trade. That ground of defence therefore in my judgment, fails : Ford v. Foster (1872) 7 Ch. 625.
22. In no event however could the defendant have a concurrent right to use Exs. 10 and U, for it is conceded that in order to establish a concurrent right it was essential for the defendant to prove prior user and that Ex. 10 was put upon the market before Ex. T, and that I have found not to be the fact.
23. There remains the question as to whether the defendant is entitled (notwithstanding that he has not proved prior user of Exs. 10 and U), to make use of these labels upon the ground that the plaintiffs have acquiesced in his user of them.
24. Now, acquiescence is only a form of estoppel, and it is of the essence of acquiescence that the party acquiescing should be aware of, and by words or conduct should represent that he assents to what is a violation of his rights, and that the person to whom such representation is made should be ignorant of the other party's rights, and should have been deluded by the representation into thinking that his wrongful action was assented to by the other party.
25. I find however in this case that the plaintiffs never assented, or represented to the defendant that they assented, to the defendant invading their rights in respect of Ex. T, and that the defendant all along knew of the plaintiffs' rights and fraudulently violated them.
26. In Proctor v. Bennis 36 Ch. Div. 760 Lord Justice Cotton observed that:
it is necessary that the person who alleges this lying by should have been acting in ignorance of the title of the other man, and that the other man should have known that ignorance and not mentioned his own title,
and at p. 761 Lord Justice Bowen added:
In order to make out such acquiescence it is necessary for them to establish that the plaintiff stood by and knowingly allowed the defendants to proceed and to expend money in ignorance of the fact that he had rights and meant to assert such rights.
27. Moreover, in this case I have found the defendant guilty of fraud, and where there is fraud there is no room for the doctrine of acquiescence to operate. For these reasons the defence of acquiescence fails.
28. As the learned Counsel for the defendant however presented an exhaustive argument on the facts in connexion with, the issues of acquiescence and delay, I will add that I find upon the evidence that at all material times the defendant was acting at his peril and knew throughout that he was so acting, and that there was nothing said or done by the plaintiffs to lull him into security or to lead him to believe that the plaintiff assented to the defendant violating the plaintiff's right in connexion with Ex. T.
29. I have stated what the plaintiffs alleged had been the various steps that they had taken from time to time with respect to the conduct of the defendant. It is apparent that the plaintiffs' success in their biri business has caused rogues in different parts of Bengal to endeavour to pirate Ex. T. A list of the proceedings taken by the plaintiffs to prevent the piracy of their label Ex. T was produced and not challenged, and it is apparent, and I find that the plaintiffs have taken all the steps that they might reasonably be expected to take to put down any invasion of their rights in connexion with Ex. T.
30. The learned Counsel for the defendant complained that the plaintiffs did not sue the defendant in 1919 at the time when they first came to know that he was attempting to pass off his goods as theirs under Ex. 10; but, as I have pointed out it was not necessary or reasonable that the plaintiff should have proceeded to sue or prosecute the defendant in 1919 owing to the undertaking which he then gave and the fact that in accordance with his promise he afterwards purchased for resale the plaintiffs' goods.
31. With respect to 1921 the learned Counsel for the defendant urged that, although goods with the defendant's label Ex. 10 were exposed in the defendant's shop, the plaintiff made no complaint. The answer, as I have stated, is that it is inconceivable, if that had been the fact, that the plaintiff who went with his attorney for the express purpose of seeing whether he could find any labels infringing Ex. T should have seen packets or bundles with Ex. 10 exposed in the defendant's shop and taken no action.
32. I have found that when the plaintiff and his attorney went to the defendant's shop in 1921 Ex. U was not to be seen exposed in the shop.
33. I have already dealt with the proceedings in connexion with the search warrant in 1924. As regards 1926, in my opinion, it was reasonable in the circumstances that the plaintiff should have waited to see the result of the Rangpur and Dacca cases before he took proceedings against the defendant.
34. There remains the question of the signboard, the posters and the advertisements in the newspapers. As regards the signboard, in my opinion, Ramjan Ali in his evidence obviously was not speaking the truth. At Q. 882 he was asked when the signboard was put up over his shop, and he stated : 'By guess it was either towards the end of 1919 or beginning of 1920.'
35. Under the stress of cross-examination at Q. 886 he stated that it might have been either 1919 or 1920, but when it turned out that the 'Manohara' mark was not registered till after that date (i.e. Q. 914 'I suggest to you that your 916 Manohara was mot registered until 1921?') he answered : 'it now comes back to my mind that the signboard was put up in 1920 or 1921.'
36. As regards the posters, I am unable to accept Ramjan's evidence as to the poster being put up in close proximity to the plaintiffs' shop in Ezra Street, or the evidence as to the poster being pulled down at the instance of Kanji. And as to the advertisement, it may well be that the advertisements were not brought to the plaintiffs' notice.
37. In my opinion the truth of the matter is that the plaintiffs have had great difficulty in tracking down persons who have been endeavouring to imitate their label Ex. T, and have taken all such steps as might reasonably be expected of them to prevent the infringement of Ex. T.
38. The result is that I find that the plaintiffs are not disabled in any way by acquiescence or delay from pursuing their legal rights, and they are entitled to an injunction and to an account of profits.
39. In order to afford reasonable protection to the plaintiffs the injunction will be in the following form : That the defendant, his servants and agents be restrained from selling or offering for sale biris in packets, bundles or cases bearing the label Ex. 10 or Ex. U or any other label (whether the word 'Mohini,' the figure of the woman, or the registered number 247 in Ex. T are used alone or in combination therein or not) in a form calculated or intended to pass off or to enable others to pass off his goods as and for the goods of the plaintiff.
40. I further order that the defendant within a week from the date hereof do file an affidavit stating the number of labels Ex. 10 and Ex. U in his possession or that of his servants and agents,. and within a fortnight after the filing of such affidavit the defendant do destroy the said labels in the presence of the plaintiffs or the agents, prior notice in that behalf to be given to the plaintiffs or their attorneys.
41. I further direct that an account be taken by the Referee or the Assistant Referee as the Registrar may determine of the profits that have accrued to the defendant from selling or otherwise disposing of biris under labels Ex. 10 and U within a period of three years prior to the date of the institution of the suit.
42. The plaintiffs are entitled to all the costs of and incidental to the suit, the costs of the commissions, and reserved' costs, on scale No. 2. Costs subsequent to the decree reserved. Liberty to apply.