Rangnekar, J. -
(1.) THE plaintiffs are an incorporated company registered in Bombay under the Indian Companies Act of 1882. THE defendant is a merchant carrying on business in Bombay. THE plaintiffs manufactured cement, and it is sold in Bombay and other Indian markets in bags bearing three letters " B B B " on them with the word " Portland " above such letters and the word " Cement" below them. THE plaintiffs' cement is well known in the market as the " B B B " brand, or the ' tin B' or ' tun B' brand, and with this trade mark their cement has attained a high reputation and commands a large sale all over India, and their dispatches from the works during the five years have averaged over eighteen lacs of bags per annum.
(2.) ABOUT the beginning of the year 1931 the plaintiffs came to know that the defendant was importing into Bombay and selling large quantities of Japanese cement in bags bearing the letters "rrr" with the word " Portland " above such letters and the word " Cement" below the same, which words according to the plaintiffs are similar to the words used on the plaintiffs' bags. They learnt that two consignments, each of a thousand bags of Japanese cement bearing the letters "rrr ", had been imported by the defendant. The plaintiffs, therefore, say that the get-up of the defendant's bags, and more particularly the letters "rrr" placed between the words " Portland " and " Cement" are a colourable imitation of the plaintiffs' bags and trade mark calculated to deceive a purchaser into the belief that in purchasing the defendant's cement he is purchasing the cement of the plaintiffs.
The defendant denies that the bags in which he was importing and had imported cement were similar to the plaintiffs' bags, and says that there were many points of dissimilarities. He denies that the get-up of his bags is a colourable imitation of the plaintiffs' bags or trade mark or that it is calculated to deceive a purchaser into the belief that in purchasing the defendant's cement he is purchasing the cement of the plaintiffs. The defendant, by his written statement, points out various differences in the bags which, he contends, clearly distinguish his goods from those of the plaintiffs.
The defendant then counterclaims for a sum of Rs. 57,460 for damages alleged to have been sustained by him by reason of the goods having been detained by the Customs Authorities at the instance of the plaintiffs.
(3.) IN the plaint as framed, the plaintiffs, in para. 6, allege that the defendant was in fact wrongfully passing off his goods as those of the plaintiffs by selling his Japanese cement with the marks and get-up used by the plaintiffs. This was denied by the defendant, and this case has now been given up by the plaintiffs.
This then is a passing off action. The basis of it being injurious falsehood or a false representation by the defendant, it must be proved as a fact that the false representation was made. The principle is well put by Lord Justict Parker in A. G. Spalding & Bros. v. A. W. Gamage, Ltd. 32 R. P. C. 234, in these words (p. 234) : The false representation may, of course, have been made in express words, but cases of express misrepresentation of this sort are rare. The more common case is, where the representation is implied in the use or limitation of a mark, trade name, or get-up with which the goods of another are associated in the minds of the public, or of a particular class of the public. In such cases the point to be decided is whether, having regard to all the circumstances of the case, the use by the defendant in connection with the goods of the mark, name, or get-up in question impliedly represents such goods to be the goods of the plaintiff, or the goods of the plaintiff of a particular class or quality, or, as it is sometimes put, whether the defendant's use of such mark, name, or get-up, is calculated to deceive. What the plaintiff has to prove in such a case is, in my opinion, that the conduct of the defendant is such as is calculated, that is to say likely, to pass off the defendant's goods as his. Fraudulent intention is not necessary. It is sufficient to prove that the practice complained of is of such a nature that it is likely in the ordinary course of business to deceive the public. In considering whether deception is probable or not, account has to be taken, as Lord Selbourne L. C. observes in Singer Manufacturing Company v. Loog (1882) 8 App. Cas. 15, 18, not of expert purchasers but of the ordinary ignorant and unwary member of the public. The question really is, whether the defendant has or has not knowingly put into the hands of retail dealers the means of deceiving the ultimate purchasers. (Reddaway v. Banham  A. C. 199) Where, therefore, there is anything so characteristic in the get-up or appearance of the defendant's goods that it identifies those goods as the merchandise of the plaintiff, any deceptive adoption or imitation of that get-up or appearance or mark is enough. These principles, I think, are well established.;