1. This is an application by the Nestle & Anglo-Swiss Condensed Milk Company Limited for an interim injunction, pending the disposal of their suit, restraining the defendant firm from passing off a brand of milk which is called 'Cordial' Milk as the plaintiff company's 'Ideal' Milk. The plaintiffs contend that their goods are widely known throughout India and that purchasers know and recognise the particular brand of milk by the name 'ideal' as the goods of the plaintiff company. They contend that they have an exclusive right of user in the label and that the label which is being used by the defendant firm and the form of container used by the defendant firm are similar to the get-up of the plaintiff company's goods and are calculated to deceive a purchaser. There is no doubt some similarity in the get-up of the label although the colouring is slightly different. The three colours which have been used in both the labels are blue, white and red. The coloured portion of the label occupies one half of the circumference of the container in each case. The other half contains directions and a statement by the manufacturer which sets out the merits of the milk. The defendant firm have copied; those directions word for word, but have omitted two paragraphs. They have also suggested that the milk sold by the defendant firm should be diluted with 1 1/2 parts of water, while the plaintiff company recommends their milk to be diluted with 1 5/8 parts of water. The words in each case in which the milk is recommended are again identical, except that the word 'Cordial' has been substituted for the word 'Ideal'.
2. Learned Counsel on behalf of the applicant has pointed out the similarity in sound between the two words 'Cordial' and 'Ideal'. It is suggested that there is an intention to deceive a possible customer by the similarity of the words and again from the fact that the directions and the trade puff are in almost identically the same words. The plaintiff company contends further that this letterpress was technically a literary work and that there has been an infringement of its copyright. In September 1938, the solicitors for the plaintiff company wrote to the defendant firm pointing out that they considered that there had been an infringement of their client's rights and calling upon the defendant firm to give an undertaking not to import in future milk bearing any label resembling those used by the plaintiff company and to tender an apology in terms which were set out. The defendant firm replied on the following day that the particular person to whom the letter had been addressed was absent from Calcutta and would not be back until the end of October. At the end of October the plaintiff company again through their Solicitors repeated their demand. The defendant firm then through their attorneys replied that their client had come back to Calcutta but had referred the matter to the manufacturers in Holland and was expecting to know their views in the course of a fortnight. The plaintiff company's solicitors then wrote that they had already been in correspondence with the manufacturers in Holland who had informed them that the ' Cordial ' trade mark did not belong to the manufacturers in Holland but to the defendant firm. That letter to my mind is a complete answer to the contention which has been put forward by learned Counsel for the defendant firm that the plaintiff company has been guilty of delay in seeking its remedy. There is another letter, which has been set out in the affidavit in reply, from the manufacturers in Holland in which they admitted that the text of the label for one of their manufacturers which was used for British India was 'almost similar' to the label employed by the plaintiff company. They wrote:
We printed this label on request of our client but I have immediately taken steps to alter the text of the brand in question.
3. That letter appears to me to be of importance, for it indicates the intention of the firm in British India to have labels printed which are 'almost similar' to the labels of the plaintiff company, and invites the conclusion that that similarity was intended for the purpose of getting customers to mistake one brand for the other. Again, with regard to the defendant firm's letter saying that they wished to refer the matter to Holland, that course was quite unnecessary, for in a declaration which they made on 4th May 1938 they stated that they had invented and adopted the name 'Cordial' and that they were the sole proprietors of the trade mark and name. The defendant firm again contend that they have been using the label complained of for over a year. But the declaration states that they have been selling milk and dairy products to the public since January 1938 and that they have invented and adopted the name of 'Cordial' as their proper trade mark and label. The declaration continues: 'The said trade marks and labels are to be used on milk, condensed milk, butter, cream and all dairy products'. The ordinary meaning of those words is that the trade marks and labels were not then used but were going to be used after 4th May. The close similarity in sound between the two words 'Cordial' and 'ideal', may easily lead to mistakes. Mr. Chatterjee on behalf of the defendant firm contends that there is no probability of deception, and that there is no statement on affidavit that there has been actual deception. He relies on the nature of the product for sale and argues that it is not likely to be purchased by illiterate customers. But whether the customers are literate or illiterate it is quite possible that without any fraud or dishonesty on the part of either the customer or dealer, the word 'ideal' will be mistaken for the word 'Cordial'. There is no explanation or suggestion why the word 'Cordial' has been employed.
4. It is further contended that a person going into a shop is not likely to be deceived by the make up, but in my view it is not improbable that they would be deceived. It is obviously of very little value at this stage, when merely an interim injunction is being prayed for, to bring forward an affidavit from a customer to say that he has gone into a shop and asked for one brand and has been given the other. Taking into consideration the attitude that has been adopted by the defendant firm and my conviction from seeing the labels and the similarity in the words, I consider that this application ought to be granted. There will be an injunction as prayed in paras. 1 and 2 of the notice of motion. Costs will be costs in the cause.