S.G. Sale, J.

1. The plaintiffs in this suit claim to be entitled to theexclusive use of the number 9000 as a mark for distinguishing certain clothknown in the Calcutta market as black-beetled cloth which is imported by theminto Calcutta, and they seek to restrain the defendants by the injunction ofhis Court from selling or dealing with any black-beetled cloth other than thatimported by the plaintiffs, which is stamped or impressed or marked with thenumber 9000, or any colourable imitation of such number. The defendants admitthat they purchased and obtained delivery of, from Messrs. Hoare, Miller &,Co., a consignment of five cases of black-beetled cloth marked with a certaindesign, a part of which design was the number 9000, and that they have sincesold and disposed of the said goods in the Calcutta market. They, however, denythat the plaintiffs have a right to the If exclusive use of the number 9000 asa distinguishing mark for the goods imported by them, and they also deny thatin selling and disposing of the goods marked in the manner aforesaid theyinfringed any right to which the plaintiffs are entitled. The plaintiffs aremerchants and importers carrying on business in Calcutta, and the defendantsare cloth dealers who have been in the habit for some years of purchasingblack-beetled cloth which is known in the Indian market as kala kapra fromvarious firms in Calcutta (and among them from Messrs. Hoare, Miller &Co.), and of selling the cloth so obtained by them by retail in the CalcuttaMarket.

2. The plaintiffs have for many years imported black-beetledcloth into the country, and are by far the largest importers in Calcutta ofthis particular variety of cloth which is principally used to cover umbrellas.Formerly umbrellas were commonly imported into this country in the finishedstate. It is now very generally the practice to manufacture them locally, withthe result that the demand for the cloth required in the manufacture haslargely increased.

3. The plaintiffs adopted the practice generally followed inthe piece-goods trade of distinguishing black-beetled cloth imported, by themby various marks and designs, sometimes used in combination with numbers andsometimes without numbers. It does not appear that the plaintiffs have for thepurpose of distinguishing black-beetled cloth imported by them ever usednumbers alone and independently of some object design. Mr. Sutcliffe, who is anassistant in the plaintiffs firm, and who since he arrived in this country inDecember 1891 has been in charge of the piece-goods department, states in hisevidence that the plaintiffs use some sixty different numbers fordistinguishing black-beetled cloth imported by them; that all these numbers areused in combination with some with distinctive object design, and that besidesthese numbers sometimes object designs are used to distinguish this cloth without any numbers at all. A considerable portion of the business in black-beetledcloth done by the plaintiffs consists in importing cloth upon the orders orindents of native dealers or shopkeepers, who again sell the articles topurchasers in the market who frequently are the ultimate consumers, that is tosay people who manufacture umbrellas, or are in some way engaged in that trade;sometimes the purchasers are up-country dealers or their agents. It is not, Igather from the evidence, the plaintiffs practice in their business todistinguish a particular quality or description of cloth always by the sameobject design or combination of object design and number. Different numbers anddifferent object designs are frequently used to distinguish importations ofcloth which are identically the same in quality, kind and measurement. Forexample, when the plaintiffs are importing the same quality of cloth fordifferent dealers, although the cloth so imported may be the same in everyrespect, it is the plaintiffs rule to stamp or impress the differentconsignments with different numbers, and sometimes with different objectdesigns. In this way the use of a particular number is confined to theimportation made for a particular dealer. It is explained that this practice isadopted to prevent dealers who import cloth through the plaintiffs fromcompeting with and underselling each other in the market.

4. The plaintiffs commenced to use the number 9000, which isthe subject matter of the present suit, as a distinguishing mark for clothimported by them in November 1894, and the circumstances under which thisnumber came to; be so used are as follows: Amongst the native dealers for whomthe plaintiffs have imported black-beetled cloth is a man named Gunput Dass,who carries on business as a cloth seller at Monohur Dasss Katra in BurraBazaa under the name of Sookdeb Seetaram. In July 1894 Gunput Dass in his fifthof Sookdeb Seetaram required the plaintiffs to supply him with fifteen(tm)cases of black-beetled cloth of the same quality and description as the I clothimported by them bearing the number 9015. As a matter-of-fact, the clothbearing this number was imported at the instance of another dealer, andaccordingly Sookdeb Seetaram was informed that the cloth could not be supplied tohim bearing the number 9015, but that he might have the same cloth marked withthe number 9000. To this Sookdeb Seetaram agreed, and the usual contract wasentered into, and in due course the cloth impressed with the number 9000, andhearing what is known as the balloon ticket, arrived and was delivered by theplaintiffs to Sookdeb Seetaram.

5. It appears that cloth of the same quality and descriptionis also imported by the plaintiffs distinguished by the balloon ticket only andwithout any number, and that it is also imported and delivered to differentdealers under the numbers 9510, 9010 and 9025 in combination with certaintickets bearing object designs. Mr. Sutcliffe is unable to say whether theballoon ticket is one of these. But it is certain that the balloon ticket isused by the plaintiffs in combination with three different numbers 9000, 9300and 815 to distinguish different varieties of black-beetled cloth.

6. In the month of September 1895 the plaintiffs receivedinformation from the broker employed by them that the defendants were sellingblock-beetled cloth in the market, bearing the number 9000 imported by the firmof Hoare, Miller & Co., and subsequently a piece of cloth was produced tothe plaintiffs, which it was represented had been purchased at the defendantsshop by one Rambux who was employed for the purpose by Gunput Dass. The pieceof cloth so produced to the plaintiffs bore not only the number 9000, thoughdiffering in colour and appearance from the number as stamped on the plaintiffscloth, but it also bore the plaintiffs balloon ticket. Now, if the evidence inthis case sufficiently established the fact that the defendants were sellingblack-beetled cloth stamped with the plaintiff balloon ticket which bears onthe face of it the design of a balloon and also the plaintiffs name inscribedthereon, it would be strong to show that the defendants were endeavouring topass off goods imported by Hoare, Miller &Co., as goods imported by theplaintiff. What the evidence is on this point, and what it proves, I shall haveto consider presently. Meanwhile, inasmuch as the cloth which was being sold bythe defendants undoubtedly bore the number 9000, and was undoubtedly importedby Messrs. Hoare, Miller & Co., correspondence ensued on the subject of theuse of the number 9000 by the latter firm, which resulted in Messrs. Hoare,Miller & Co., on being satisfied that the plaintiffs user of the number9000 was prior in time, giving an assurance to the plaintiffs that they woulddiscontinue the use of the number without however admitting the plaintiffsclaim to the exclusive right of using that number.

7. On the 31st October 1895 the plaintiffs through theirsolicitors wrote to the defendants requiring them to desist from selling orotherwise dealing with black-beetled cloth bearing the number 9000, importedthrough firms other than themselves. No reply to this letter was received, andon the 29th of May 1896 the present suit was instituted.

8. It is to be observed that the only infringement complainedof in this suit is the unauthorised use of the number 9000 in respect of clothnot imported, by the plaintiffs. No reference is made in the plaint to anyother mark or design used by them in combination with the number 9000, and nosuggestion is made in the plaint that there has been any imitation by thedefendants of the general combination of marks used by the plaintiffs todistinguish their goods.

9. It is necessary at the outset to see what the allegationsin the plaint are in which the plaintiffs base their claim to the exclusive useof the number 9000 on black-beetled cloth imported by them.

10. These allegations are in substance two in number. Thefirst is that the plaintiffs used the number to denote that the cloth whichbore the number was of a certain quality, and that it was imported by them.This allegation shows the purpose and object the plaintiffs had in view inusing this number.

11. The second proposition is that at the time of theinfringement complained of, the number was recognized in the Calcutta marketand by the dealers in different parts of India as representing that the clothon which it was impressed had a particular reputation as to quality, and wasimported by the plaintiffs.

12. In other words, what the plaintiffs say in the plaint isthat the number was used by them to denote both the quality and the origin orimportation of the cloth, and they go on to say that the number is recognizedin the market as representing the quality and importation of the cloth.

13. It is clear from the cases which have been referred tothat both these propositions must be established as the foundation of the rightof exclusive user.

14. In the Singer Manufacturing Company v. Loog L. E. 8 Ap.Cal. 15 Lord Watson at page 38 of the report says: "I think it isestablished by the evidence that the name "Singer" as used by theappellant-company and their predecessor in business Isaac Merritt Singer haslong been and still is generally understood to denote sewing machines of theirmanufacture," and again: "It is clearly proved that a customerdesiring to purchase a Singer Sewing Machine invariably understood that he wasbuying and expected to get, not merely a machine made by Mr. Singer or thecompany, but a machine of the same shape and character with one or other of theclasses which he or they were known to be making at the time,"

15. The learned Judge then proceeds: "The legalconsequence of these facts is that the appellant company have a right, anexclusive right, to use the name Singer as denoting sewing machines of theirmanufacture." In the sentences which follow the learned Judge points outwhat is necessary to constitute an infringement of this right of exclusiveuser. He says: "No one has a right to use the word for the purpose ofpassing off his goods as theirs, or even when be is innocent of that purpose touse it in any way calculated to deceive or aid in deceiving the public. None ofthe numerous authorities cited at the bar by the appellants Counsel carry theexclusive right of a trader to a particular name beyond that limit. There is noauthority, and in my opinion no principle for giving the trader any higherright. If he cannot allege and prove that the public are deceived or that thereis reasonable probability of deception he has no right to interfere with theuse of the name by others."

16. And so again in Somerville v. Schembri L. R. 12 Ap. CaL.453 the same learned Judge in delivering the judgment of the Privy Council madeuse of the following observations at page 457 of the report:

In the first of these cases the interest which a merchant ormanufacturer has in the trade-mark which he uses was thus defined by LordCranworth: The right which a manufacturer has in his trade-mark is theexclusive right to use it for the purpose of indicating where, or by whom or atwhat manufactory the article to which it is affixed was manufactured. As soon,therefore, as a trade-mark has been so employed in the market as to indicate topurchasers that the goods to which it is attached are the manufacture of aparticular firm, it becomes, to that extent, the exclusive property of thefirm; and no one else has a right to copy it, or even to appropriate an part ofit, if by such appropriation unwary purchasers may be induced to believe thatthey are getting goods which were made by the firm to whom the trademarksbelong."

17. And, again, in Johnston v. Orr Ewing L.R. 7 Ap. Ca. 219Lord Selborne in dealing with the question of the right of the respondent tothe exclusive user of the Two Elephant mark, after stating the effect of theevidence says at page 221 of the report: "Hence it happened that many ofthe customers who desired to purchase the plaintiffs yarn in Bombay and themarkets supplied from thence, were in the habit of knowing it as, and callingit, bhe hathi, which in the Guzerati language means two elephants;sometimes prefixing the word Grahams and sometimes Sooneri, which meansgolden. It is in my opinion clear upon the evidence that these words bhehathi so used (whether alone or not) had reference to the device upon theplaintiffs ticket, that they were used to describe the plaintiffs goods, andthose only, and that any customer or native dealer in Bombay or the districtsthence supplied, when he asked for bhe hathi yarn, would be asking for theyarn exported by the plaintiffs and bearing their trade-mark."

18. The learned Judge then adds: "The plaintiffs titleto their own trademark being clearly made out, the only question is whether thedefendants have infringed it." The question then of the right to theexclusive user of a trade name, or trade number is largely, if not entirely, aquestion, of fact, and the question whether it exists in any given case mustdepend upon whether the evidence in that case is sufficient to show such aconnection or association between the name or the number and the firm whichuses it as to indicate to the ordinary purchasers in the market into whosohands the goods marked with the name or number may come that the goods are thegoods of that particular firm.

19. It is necessary, therefore, to turn to the evidence inthis case to see whether such an association of the number 9C JO withblack-beetled cloth imported by the plaintiffs firm has been made out so as toshow that this number appearing on that cloth is in effect a representation tothe ordinary purchaser that the cloth bearing that number belongs to or hasbeen imported by the plaintiffs.

20. The evidence which has been given in respect of theright of exclusive user of the number 9000 claimed by the plaintiffs fallsunder two heads: First, there is the direct evidence bearing on the user of thenumber 9000 by the plaintiffs and the reputation it bears in the market asapplied to black-beetled cloth, and next there is a very large body of evidencedealing with the practice as to the use of numbers and their signification inthe piece-goods trade generally, and to the meaning and use of a variety ofnumbers used in that trade. All this body of evidence last mentioned seems tome to have but a very remote bearing on the points at issue in the case. Bothsides, I regret to say, have insisted upon appealing to the practices andusages prevailing in the piece-goods trade generally, and the result has beenthat a great many side-issues and remote questions have been discussed andevidence given thereon, which has led to an unnecessarily protracted hearing.Indeed, much of the evidence which has been adduced in this case only serves toshow and to emphasize the fact that no general rule as to the right ofexclusive use of numbers can be established from particular instancesapplicable to all the various numbers used in the piece-goods trade. Each casemust depend upon its own particular facts, and it is impossible for the Court toform or to express any opinion as to rights of persons who are not parties tothis suit, as regards particular numbers, when the facts and circumstancesrelative to the use of these numbers are not fully before the Court.

21. I propose therefore only dealing with the evidence sofar as it bears directly on the use of the number 9000 and its reputation andmeaning in the market in connection with the black-beetled cloth. I turn firstto the evidence of Mr. Sutcliffe and the broker Proladh Roy. Both thesewitnesses say that between the months of November 1894 and September 1895 therewas in their opinion a rapid sale of the plaintiffs number 9000 black-beetledcloth in the market, and that an active demand for this particular cloth rose.They say that the purchasers of black-beetled cloth purchase usually by thenumber affixed to the cloth, and not from an examination of the quality of thecloth, and that the number 9000 quickly acquired a reputation in the market.Mr. Sutcliffe says that by September 1895, which is the date of the allegedinfringement by the defendants, the number had acquired in his opinion a goodreputation.

22. But to show that a particular number has acquired areputation in the market, and that purchasers buy the cloth by the number andnot from an examination of the nature or quality of the cloth, is notsufficient to establish the right of exclusive user of that number, as Markby,J., has pointed out in his judgment in the case of Ralli v. Fleming I.L.R. 3Cal. 417 see p. 433 of the report. It is consistent with this evidence that thereputation which the number acquired was a reputation for quality only. It doesnot necessarily follow that the purchasing public showed a preference for thegoods because the plaintiffs imported them, or that the number as understood bythe public represented that the goods were in fact imported by the plaintiffs.

23. In cross-examination Mr. Sutcliffe was pressed as to therelative importance of the ticket bearing an object design and the number as usedby the plaintiffs on their black-beetled cloth, and Mr. Sutcliffe in answer toa question said: "If the ticket were taken off I think a buyer would knowour cloth from the number." I am sure that Mr. Sutcliffe was speakingparticularly of the number 9000 when he gave this answer, but even if he did,it does not appear that Mr. Sutcliffe had any grounds for forming this opinionbeyond that there seemed to him a demand for his firms goods bearing thatnumber.

24. So also the witness Proladh Roy says: "The number9000 is well-known in the Bazar.

Q. What does the number indicate

"A. It indicates that the cloth is Barlows.

25. This again is the expression of an opinion only, and itsvalue must depend upon the grounds on which it is based.

26. It does not appear that this witness had any betterbasis for his opinion than Mr. Sutcliffe. Moreover, the witness goes on to saythat the other numbers used by the plaintiffs for precisely the same kind ofcloth, i.e., the numbers 9015, 9010, 9025 and 9001, acquired but little or noreputation, yet the cloth was the same in each case and the importers were thesame. It seems, therefore, reasonable to infer that any reputation the number9000 acquired must have been independent of any association between the numberand the plaintiffs as the importers in the minds of the purchasers. I do notthink that any of the other witnesses who have been called say that purchasersor general dealers in the market understood from the number 9000 that the clothon which that number appeared was the plaintiffs.

27. The other witnesses are witnesses who are unconnectedwith the plaintiffs firm, and an examination of their evidence shows that noneof them are prepared to say that purchasers or general dealers in the marketunderstood, from the number 9000 and from that number alone, that the cloth wasthe plaintiffs. I shall refer to the evidence of these witnesses shortly. Itake the evidence first of Gunput Dass. This is the person to whom theplaintiffs exclusively delivered the cloth bearing the number 9000 up to thetime at least of the alleged infringement. Gunput Dass says: "9000 clothbecame known in the market. Two or three months after it came out I beganselling it. All beparis began asking for this number."

28. This evidence so far only tends to show that this clothwas asked for and sold by him by the number, but then he adds: "Purchaserslook to the quality of the cloth and also to the number," and thatstatement goes to show that purchasers rely on their own judgment as to thequality of the cloth, besides looking to the number imposed upon it.

29. The next witness I refer to is Ram Dutt. This witness isa broker. He says he gets orders for kola kapra 9000. "It has a goodreputation," and then he adds: "If some one asks me for 9000 cloth Iwould go to Sook Deb Seetaram and Jeebun Ram who take such cloth from Barlow& Co.

30. Nowhere does he say that the general reputation of thenumber 9000 in the market informs the purchaser that the cloth is theplaintiffs.

31. The witness adds that on some cloth the name of the firmis written, and on others there is the ticket showing who the importers are.These facts, it is obvious, are facts which would inform the purchaser who theimporter was, apart altogether from the number used on the cloth.

32. The next witness Sabha Chand said he purchased aconsignment of 9000 cloth direct from the broker Praladh Roy, and that he wentto Praladh Roy in consequence of something said to him by some beparis. Heagain does not profess to say that purchasers generally understood from thenumber 9000 alone that the black-beetled cloth belongs to or is imported by theplaintiffs. Moreover, in answer to the Court he said that in purchasing cloththey look to the marks and also use their own judgment in selecting the cloth.That also is evidence which tends rather to show that the purchasers use theirown judgment in selecting cloth, and certainly do not necessarily buy clothmarked with 9000 merely on the faith or belief that it is the plaintiffs.Heralal Chowdhry, another broker, says that a bepari in purchasing cloth looksat the sample and gives his orders according to the opinion he forms of thequality of the cloth from the samples. He says he came to know of the cloth9000 in September or October 1895, and he adds: "Barlows 9000 has a goodreputation in the market."

33. Towards the close of his examination he says, "thebest known kala kapra in the market is Barlows 9000," and I take him tomean that this particular variety of cloth is most in demand in the market, buthe does not say that this is so because it is known as the plaintiffs cloth,or that the number 9000 gives the purchasers that information or thatpurchasers buy under that belief. Moreover, in cross-examination, he seems asregards one point to support what the defendant Tikunchand has said. He says bedoes not consider that when offering a number of marks to a purchaser that theparticular mark chosen is of much importance. He says it does not make muchdifference to him which mark is chosen, and that even if the cloth comes outwithout any number at all it would not necessarily make any difference.

34. The witness Fakir Chand Dey represents an importantclass of witnesses, namely, those who are the actual consumers of this cloth.He says he does an umbrella business, and buys kala kapra to cover umbrellaswith. He says he knows Barlows kala kapra 9000, and all he knows is thatBarlows number 9000 is a superior quality of cloth. He adds that he does notknow much about its reputation. He says he never bought number 9000, but onlynumber 9015. The evidence of this witness and of others who follow him rathertends to show that there is in fact no reputation in the market as to number9000 kala kapra being the plaintiffs cloth, because it is difficult tobelieve that if any such general reputation existed as to the ownership orimportation they would not have known of it.

35. Sri (sic) fas Geenka is a broker, and his evidencemerely goes to show that when (sic) 1) &" want Barlows cloth they askfor Barlows cloth. His evidence (sic)lacSd to show that there is any suchreputation in the market, which of)(sic)f supplies the information that thenumber 9000 belongs to Barlow & Q8,16, He was not cross-examined.

36. Ram (sic)TPenr(sic)isto Dey is a dealer in umbrellas.He says he knows kala kapra 9000 and n(sic)aa he knows it is imported byBarlow. He says he gets it because it was HAnl(sic)UlS largely in the market,and that it was of good quality.

37. In (sic) s-examination it appears that his knowledge ofthis number 9000 being Barlow 1(sic)1 vs was not derived from any reputationin the market but from information (sic)f8, Supplied by the broker direct.Punchanun Dutt, another umbrella dealer speak li(sic)f8 np number 9000 being awell-known number in the market.

38. This is P(sic)Jorrtile dealer who obtained a directconsignment of twenty-five cases of the number b nar(sic) throro 9000 clothfrom Barlow about or shortly before the institution of this suit. This, witnessmakes one statement, which at first sight seems to be of more importance thanthe statements of the witnesses I have referred to. He says: "When I go topurchase cloth I ask for number 9000. I make no mention of the balloonticket." If what he meant was that on going to a general dealer in themarket and on asking for number 9000 he obtained the plaintiffs goods thatwould be some evidence to show that there was a general understanding in themarket that the number 9000 was the plaintiffs, but, it turns out that he isonly referring to a purchase made by him direct from Barlow and Company, andhis evidence also shows that when he purchased in the open market he used, notthe number only, but the name of the importer. He says he has only purchased inthe Bazar once, and that was Messrs. Mitchell; Bardsley & Co.s cloth, aridon asking for it he asked for Mitchell; Bardsley & Co.s cloth numbered soand so.

39. These are all the witnesses who speak to the reputationof number 9000 on black-beetled cloth in the market.

40. This evidence in my opinion fails to establish thatthere was any said association between the number 9000 and the plaintiffs nameas to indicate in the understanding of the public that black-beetled clothbearing the number came from their firm, If so, then there is no right ofexclusive user on the part of the plaintiffs as regards the number 9000, andthis suit must fail on the ground. But it is desirable perhaps that I shouldexpress my opinion on the evidence bearing on the question of infringement,assuming for this purpose that the plaintiffs have the right of exclusive usewhich they claim, I do no wish to be understood as saying that a number and aname stand necessary in the same position so far as the question of both beingproperly the subject matter of right of exclusive user is concerned. It hasbeen said that the case of Ralli v. Fleming already referred to affords aninstance where the right of exclusive user of a number has been recognised. Butwhen this case examined I do not think it can be regarded as an authority forthe recog(sic)uiti of any such right.

41. The facts in that case showed that there had been animitation of general combination of marks used by the plaintiffs, and thelearned C(sic)I Justice appears to have based his opinion very largely on thisciruma(sic)star Markby, J., on the other hand, thought the only infringementthe plai(sic)nt were entitled to complain of was the use by the defendants ofthe number 2008, and as regards this number he held that the plaintiffs hadfa(sic) to establish their claim to the right of exclusive user, and theinju(sic)nct which was issued in accordance with the opinion of Garth, G.J.,was to following effect: "Order, that the defendants be restrained fromselling cloth impressed with the combination of marks described in exhibit tothe affidavit of Alexander Westerhou(sic)t, or any other combinatioim(sic)gthat used by the plaintiffs, and especially from using the number any suchcombination."

42. The right of exclusive user of a name, as has beenpointed case of Singer v. Loog, is not an absolute and unqualified right whichtitle the owner to prevent another person from using it under all cases. It isonly when the use of the name deceives or is reasonably like we the public thatit can be interfered with or prevented. The samon must apply to the right ofexclusive user of a number.

43. The use therefore of the number 9000 on cloth sold bythe dean only be an infringement of the plaintiffs right, if it can be sho(sic)uchuse was intended to deceive the ordinary or unwary purchase belief that thegoods were imported by the plaintiffs or that should take the cloth stampedwith the number 9000 or any other number. The five cases arrived in September1895 and they were all sold off by the defendants between the end of that monthand the early part of November 1895. On comparing a piece of the plaintiffsnumber 9000 cloth with a piece of the defendants cloth bearing that number theobserver cannot fail to be at one struck by the total dissimilarity of thegeneral combination of marks appealing on the respective pieces. Each piecebears a very distinctive object ticket. The plaintiffs is a balloon ticketrectangular in shape. On the defendants Clause is a butterfly ticket which istriangular in shape. The marks are arrarij(sic) differently and even the number9000 on the plaintiffs cloth is very unlils(sic) colouring and appearance fromthe 9000 which is impressed on the defends cloth. The plaintiffs number is invery bright colouring and attracts the at once, whereas the number on thedefendants cloth is dull and fai(sic)n colouring and does not readily attractattention.

44. I am aware that a comparison of different combinationsof market by side is not conclusive on the question of infringement. But I takeit that the general dissimilarity of the marks is not a matter which can bedisregarded.

45. When numbers are used in conjunction with strikingobject designs it is difficult to believe that goods are dealt with by thenumber alone without any reference to the object design. The evidence is thatthe balloon mark is well known in connection with the black-beetled cloth, andtaking all the facts together, I cannot bring myself to think that the use ofthe number 9000 by the defendants under the circumstances and in conjunctionwith the other marks proved in this case is calculated to deceive purchasersinto the belief that the Dy the defendants is cloth imported by the plaintiffs.

.

T. Barlow and Ors. vs. Gobindram and Ors. (16.02.1897 -CALHC)