1. This is a very plain case. The plaintiff company seeks to restrain the defendant from using their trade mark and copying the get-up of their goods. Both parties sell in the Calcutta market a whole meal flour said to be valuable as a preventive of cure of beri-beri. Both sell flour in small bags of 2, 5 and 10 seers each-that is both supply flour put up in quantities for domestic consumption, and the evidence is that many buyers are illiterate. The plaintiff company started a mill in 1932 and adopted a device representing 'Mother India' as a trade mark and introduced sealed brown paper bags for marketing their flour. These bags had panels of printed matter in Bengali and Hindi. The words 'Bharat Mata' mark were printed on these bags but not in a conspicuous manner. The name of the mill was printed on the back of the bag but not in a conspicuous manner. The plaintiff's trade increased from 7,000 to 8,000 maunds in 1932-33 to some 80,000 maunds in 1935 and 1936. They claim, and I think the evidence amply supports this claim, that there was a large demand for their flour, and that consumers asked for the 'Bharat Mata' brand and looked for the picture on the bags and the get up of the bags before purchasing.
2. The defendant's story is that he started with a small shop-a grocer's shop-and that he himself used to take ground-flour to his customers some 13 in number, in 1337. At first, he says the bags in which his flour was sold were plain. There, he says, he stamped on them back and front a small device representing 'Mother India' and called his flour 'Bharat Janani' flour. According to him it was not until 1343-that is between April 1935 and April 1936 that he obtained many customers. Though the evidence is not very precise on the point, for it is the defendant's evidence, it is argued that this increase of trade from 13 to 365 customers it is said-(but admittedly there was a great increase)-dated from the introduction of a printed bag with a larger representation of 'Mother India.' It was admittedly about this time that the defendant secured retailers as customers. It was for the plaintiff to establish if he could that the increase coincided with the use of his mark, and that is not proved.
3. The defendant's case is that his new bag merely had an enlarged replica of his old device on it asnd that evice and everything else which appears on the plaintiffs' bag is common to the trade-and that the distinguishing feature is that whereas the plaintiff's goods are known as 'Bharat Mata,' his are known as 'Bharat Janani.' Taking these points one by one. The defendant did not plead that anything was common to the trade, but I allowed that issue to be raised for he had alleged previous user. Technically and actually that is a very different proposition but the evidence on either question is very much the same, and the defendant was really taking on himself a harder matter to prove, for to establish that anything is common to a trade requires more evidence than to establish previous user. As regards the main feature of the get-up pi the plaintiff's bag, the pictorial representation of 'Mother India', the defendant relied on four other trade marks, which it seems command some sale in the market, but apparently not a large sale. In all these trade marks there is a representation of a lady or goddess, but there is no similarity between any of them and the plaintiff's picture. Not even the most unwary customers would mistake one of them for the plaintiff's mark. Similar paper bags are used, but the general get-up of these four bags is not anything like that of the plaintiff's bag. In my opinion on an inspection of these four bags and the plaintiff's bag, no case of the general get-up or of the picture being common to the trade has been established. The defendant's new bag seems to me to be a deliberate imitation of the plaintiff's bag-it is superficially identical.
4. The other point on which the defendant relied was that he had he claimed used the picture since 1930 or two years before the plaintiff's mills began business. On this point he gave evidence himself. It is alleged that he made entries in his books which fix the date on which he started to use a small rubber stamp with the picture and the words 'Bharat Janani' on it. He admitted that up to the time when he started the printed bags, he only sold one sort of flour and used one sort of rubber stamp. The books were by no means a set of books or elaborate, except that when entering sales of flour amounting to 3, 4 or 5 seers in a day the defendant wrote he says 'Bharat Janani' flour: and when he records the purchase of a rubber stamp he writes 'Bharat Janani' stamp: and in one entry showing the stock-in-trade worth Rs. 27 he must needs add 'Bharat Janani' mark. In my opinion these are not genuine books-they somewhat cleverly show that few-very few-sales were effected, but it seems to me most unusual to add the words 'Bharat Janani' in the circumstances. The defendant had nothing else to fix the dates. When he received a letter of demand from the plaintiff stating that they used their mark from 1932, in reply his solicitors do not state how long the defendant claimed to have used the mark. Further no specimen of the alleged small mark was produced until the defendant filed an affidavit in reply to the plaintiff's affidavit in reply.
5. The 'defendant called to corroborate the story of this small mark a man who said he made rubber stamps for him. The witness admitted that he could not read and made 6 or 7 rubber stamps a week, and yet professed to remember that he made the first rubber stamp for the defendant in 1930. The defendant also called two of his customers, who said they bought 'Bharat Janani' flour from him and that the small rubber stamp was used in 1930 or 1931, that is 6 or 7 or 8 years ago. But both these witnesses clearly recollected that the defendant milled wheat in his little shop in Grey Street, whereas the defendant said he did not mill his flour himself until 1936, or late in 1935. and never did so in Grey Street. One of these witnesses said he bought the defendant's flour because his mother had beriberi 6 or 7 years ago. That might have been more impressive if he had not made the mistake about the milling. It seemed to me that all these three witnesses said that they remembered that the stamp was used 6 or 7 years ago to oblige the defendant, and there was nothing to enable them to select 7 or 8 years rather than 4 or 5 years for the date of their alleged purchases.
6. In my opinion it is by no means established that the defendant used this small stamp before the plaintiffs began to use their mark. The whole story of the small stamp seems to me to be very dubious, and if it were used at all, it was only used while the defendant had as patrons consumers of flour, or quite possibly for some short period before the defendant started to use the bags with printed matter on them he used this small stamp as a preliminary precaution before he started to imitate the plaintiff's mark. It is quite clear that the defendant only recently in 1936 secured retail dealers as buyers of his flour-before then, any trading was in a small shop in a tiled hut. Surreptitious user of a mark does not affect the owner's rights. The plaintiffs give evidence that they had taken prompt action against two infringers and that their dealers were on the look out for infringements.
7. In my opinion at most the defendant used the small mark in a small way and did so with a view to claiming a right to use a mark which would enable him to pass off his flour for the popular flour manufactured by the plaintiff. It was argued that on the plaintiff's own evidence no deception was possible. This was based on the statement made in the affidavit of Mr. Fyffe and Bistu Charan which both witnesses adhered to in their evidence. Mr. Fyffe said that the plaintiff's atta is called for by the name Bharat Mata, and 'customers look to the mark and general get-up of the paper-bags to satisfy themselves that this atta is of the plaintiff'. The other affidavit was to the same effect. This was construed to mean that the customer looked for the name given to the mark in the printed matter on the bag. But that was not put to either witness, for it was obvious that both witnesses meant that the customer looked at the mark, that is, the picture. This seems very probable in the case of all buyers and especially in the case of illiterate buyers.
8. It was argued that ignorant customers are not to be protected and great reliance was placed on a judgment reported to be delivered by Romer, L.J. in Payton & Co., Ltd. v. Snelling Lampard & Co. (1901) 17 Rep Pat Cas 48, at p. 57. The words attributed to Romer, L.J. do not appear to be attributed correctly-they are certainly not up to the standard of his judgments as reported in authorized reports. According to the report the learned Lord Justice said that only the customers who 'know the distinguishing characteristics of the plaintiff's goods' and 'what is fairly common to the trade' need be considered. At. p. 52 the learned Judge is reported to have said:
The customer to be protected is the one who knows the features of your tins apart from what is common to the trade.
9. It was alleged in the case that the general get-up of the plaintiff's tins of coffee had been copied, but no fraud was established. The passage in the judgment seems to be wrongly reported, for the goods in question were packed in tins and no characteristics of such goods would be apparent to a buyer in a shop. Once it is necessary to amend words, incorrect on the face of them, it is impossible to place any reliance on the report. Further the statement that a customer must know what is 'fairly common' to the trade before his deception is material, appears to be wrongly reported. I can find no other judgment which suggests any such requirement which on the face of it is difficult, for it practically amounts to limiting the persons whose deception is material, to experts in the particular trade, but Rekeurd, J. followed this judgment. On appeal Payton & Co., Ltd. v. Snelling, Lampard & Co., Ltd. (1901) A C 308 the only point decided was that it was for the Judge and not for a witness to express an opinion as to whether two designs are similar. In any case, none of these alleged essentials has any application to this country. That was the view taken in Juggilal Kamalapat v. Swadeshi Mills Co. AIR 1929 P C 11 where the Judicial Committee approved of the judgment of Mears, C.J. on this point. There Lord Dunedin states that the plaintiff's case was that the defendants
suddenly began to use trade marks, which, though if critically looked at by a person of such literacy as to have critical powers of observation would not confuse, yet would be apt to be confused by the illiterate and unobservant.
10. He then approved of the injunction granted to the plaintiffs. This was a case where the trade mark was copied as well as the general get-up. This decision can not be disregarded or in any way modified by the observations attributed to Romer, L.J. In this case in my opinion the imitation is so close that it would enable a dealer to pass off the defendant's flour for that of the plaintiff's manufacture, and the whole get up is so similar that an injunction in the terms approved by the Judicial Committee in the above cited case should be granted. In my opinion it is not established that the defendant's flour was ever known as 'Bharat Janani' flour, and that it is established that the plaintiff's flour was known as 'Bharat Mata' flour.
11. The defendant's bags in my opinion are likely to mislead ordinary buyers who ask for 'Bharat Mata' flour into a belief that the defendant's flour is the flour with the reputation, i.e., plaintiff's flour. I do not think that the plaintiff is entitled to claim the general get-up of the bags or the arrangement of the printing on them. Whether the defendant should be restrained from using the words 'Bharat Janani' in connexion with the flour is a difficult point. But as the words mean the same as the words 'Bharat Mata' and in my opinion were adopted in order to justify the printed mark, I think that the plaintiffs are entitled to an injunction. There will be a perpetual injunction restraining the defendant, his servants and agents from placing upon goods of their manufacture and from selling any flour to which there is affixed or stamped or otherwise applied any label or design which colourably imitates the figure of 'Mother India' (annexure 'A' to the plaint) or on which the words 'Bharat Janani' appear.
12. There will also be an order on the defendant to deliver up to the plaintiff for destruction all infringing bags, dies and stamps in his possession. I see no reason for an order to deliver up all flour packed in such bags; only the empty or emptied bags need be delivered up. As regards damages, there will be a reference and damages are to be assessed according to the rule laid down in Juggilal Kamalapat v. Swadeshi Mills Co. AIR 1929 P C 11. The plaintiff company, if they can establish that their sales decreased after the defendant started to use his bag (Ex. B), are entitled to the loss of profits resulting therefrom. If they can show that the average increase of the trade did not continue after that date, they are entitled to the loss of profit on such average increase of sales. The defendant will pay the plaintiff's costs on Scale No. 2 and all reserved costs.