C.C. Ghose, J.
1. This is an application on behalf of the plaintiff Company for an injunction restraining the defendants, their servants and agents from advertising, offering for sale, selling or otherwise dealing in cigarettes contained in the packet or envelope of which annexure B to the plaint is a specimen, or in any packet, envelope or other receptacle which is a colourable imitation of the packet; or envelope owned and used by the plaintiff Company of which annexure A to the plaint is a specimen and from using the name Padri in connection with cigarettes sold by the defendants. The facts are as follows: The plaintiff Company state that they have manufactured and sold since 1910 a brand of cigarettes called Pedro cigarettes, which is put up for sale and sold in packets or envelopes of a special and distinctive design, colour and get-up. They also state that they are entitled to the exclusive right of user of the said name Pedro in connection with the cigarettes in question. They state further that the said cigarettes have acquired considerable popularity and a good reputation in India and Burma and are known and recognised by purchasers in such market by the said packet or envelope as also by the said name Pedro as being the manufacture or merchandise of a particular person. According to the plaintiff Company, the average monthly sales of the cigarettes amount to 45 millions, such sales being effected throughout India and Burma. The plaintiff Company allege that the defendants are manufacturing or causing or procuring to be manufactured and advertising, offering for sale and selling in Calcutta and elsewhere a certain brand of cigarettes called Padri cigarettes which are of a quality inferior to that of the Pedro cigarettes and that the conduct of the defendants is intended and likely to deceive intending purchasers desirous of purchasing the said Pedro cigarettes of the plaintiff Company and to cause them to believe that the said Padri cigarettes are the cigarettes of the plaintiff Company and by reason of such deception and belief so induced, to purchase such Padri cigarettes as and instead of the said Pedro cigarettes. In other words, the plaintiff Company charge that the defendants are now passing off cigarettes which are not the goods of the plaintiff Company as and for goods of the plaintiff Company. In these circumstances the plaintiff Company pray for an order as indicated above. In support of the plaintiff Company's application, the affidavits of three persons named Mahomed Usman, A. G. Jones and H.J.E. Abbott have been used before me. In addition thereto, there are certain other affidavits being the affidavits of persona who had been instructed by the plaintiff Company to go out into the market and purchase certain quantities of Padri cigarettes. The defendants deny that the colour, design or get-up of the said packets at envelopes of the Pedro cigarettes is special or distinctive, and that dealers or purchasers recognise such cigarettes when sold in packets and envelopes under the name Pedro as being the manufacture or merchandise of a particular person or of the plaintiff Company. They also deny that any packets or envelopes containing Padri cigarettes which have been offered for sale closely resemble any packets or envelopes in which the plaintiff Company offer their Pedro cigarettes for sale. They also deny that by the use of the name Padri they intend to deceive or in fact have deceived purchasers, even if unwary, desirous of purchasing the cigarettes of the plaintiff Company into the belief that the cigarettes manufactured by the defendants are cigarettes manufactured by the plaintiff Company. They urge that the Pedro and Padri cigarettes, as put up in packets, are quite different in design, colouring and general get-up and that the Padri cigarettes cannot therefore deceive the ordinary bazaar purchasers.
2. Learned Counsel on behalf of the plain-tiff Company has drawn attention to following resemblances in the get up of the Pedro and Padri cigarettes:-In the case of the Pedro cigarettes, there are a crown and glory or what is called radiating streams of light and the colouring is of green, white and gold; in the case of the Padri cigarettes, there are a crown and a glory and a book and the colouring is of dark green, white and gold, with some amount of black thrown in.
3. He has also argued that it is entirely a mutter for the Court whether the degree of resemblance between the two names of Pedro and Padri and between the two designs of get-up is such as is likely to deceive purchasers. In other words, the contention is that the Court has to be satisfied that the defendants' conduct is calculated to pass off other goods as those of the plaintiff Company or at least to produce such confusion in the minds of probable customers or purchasers or other persons with whom the plaintiff Company have business relations, as would be likely to lead to the other goods being bought and sold as goods of the plaintiff Company. A fraudulent intention is not necessary; as has been said, 'the law does not take notice of a fraudulent intention in a man's mind, if he does nothing to carry out the fraud.' It is therefore contended that the whole question turns upon this as to whether or not the Court will believe that there is any probability of deception and that instances of actual deception need not be proved if the Court is otherwise satisfied of the probability of deception.
4. As has been said in numerous cases, the appeal is to the eye of the Judge and the Judge must, in the end, act upon his own view on a comparison of the marks or designs after paying due attention to the evidence adduced before him: See in this connection Payton & Co., Ltd. v. Snelling (1901) A.C. 308, Schweppes Ltd, v. Gibbons (1905) 22 R.P.C. 113, Farrow's case (1891) 63 L.T. 233, where it is said that the question is to be decided partly by the Judge's eyesight and partly by the view of the evidence; Burne v. Swan & Edgar, Ltd. (1903) 1 Ch. 211 Alaska Packer's Association v. Crookes (1901) 18 R.P.C. 129. It has sometimes bean said that the result of the cases is that unless it is left to the eyesight of the Judge to judge for himself, there is practically no evidence open to the plaintiff in an action of this nature. In my opinion the true view is that while the Judge must not surrender his own independent judgment to any witness whatsoever, he must, at the same time, in order to arrive at a proper conclusion, not disregard the evidence adduced in the particular case before him.
5. One of the points raised bearing on the question of the probability of deception is the similarity in the two names, i.e., Pedro and Padri. In the case of the North Cheshire Brewery Co. v. Manchester Brewery Co. (1899) A.C. 83, Lord Halsbury, L.C. observed as follows:-'Is this name so nearly resembling the name of another firm as to be likely to deceive? That is a question upon which evidence, of course, might be given as to whether or not there was another brewery either in the one place or in the other, or whether there were several breweries nearly resembling it in name; what the state of the trade was, and whether there was any trade name. All these are matters which are proper to be dealt with upon evidence; but upon the one question which your Lordships have to decide, whether the one name is so nearly resembling another as to be calculated to deceive, I am of opinion that no witness would be entitled to say that, and for this reason: that that is the very question which your Lordships have to try.'
6. Bearing these principles in mind the ('question which I have got to answer on the evidence before me in this application is whether there is probability of deception, in other words, whether the degree of resemblance between the two names and between the two designs of get-up is such as is likely to deceive. In considering this matter I must pay attention at the same time to the question as to who are the persons whom the resemblance is likely to deceive. They are the persons who are likely to become purchasers of the goods put up in the packets before me, i. e,, the ultimate purchasers in the Indian market, many of whom are unacquainted with the English language and most of whom are illiterate. In the second place, in finding put the amount of resemblance between the two packets, not only must one look at the distinguishing features i.e., dissimilarities, but one must look at the whole and come to a decision, I do not agree that each resemblance is to be taken by itself and a conclusion is to be based thereon. A great deal of stress has been laid upon what is described as the leading feature, namely, the resemblance between the two names. In my view not only must this leading feature, as it is called, be taken into consideration, but I must look at the two get ups as a whole, and while not disregarding the parts which are common to the trade I must try to find out whether the plaintiff Company are able to make out that the defendant's goods are like the plaintiff company's by reason of something peculiar to the plaintiff Company and by reason of defendants having adopted some mark or device or label or something of that kind, which distinguishes the plain tiff Company's goods from other goods which have, like those goods, the features common to the trade. I have looked at the two get-ups as a whole in the light of what I have said above, and I confess that when I look at the whole, it appears to me that the dissimilarities are not enough to make the whole dissimilar. In other words, after paying full attention to Mr. Sircar's criticism of the allegations in the plaint and of the affidavits which have been used before me on behalf of the plaintiff Company, I am constrained to come to the conclusion that the defendant's acts have been such as are calculated to deceive persons buying the defendant's goods into the belief that they are buying the plaintiff Company's goods. Having regard to this conclusion I must make the order asked for. Costs, costs in the cause.