BUNDI PORTLAND CEMENT LTD Vs. ABDUL HUSSEIN ESSAJI

JUDGEMENT

(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.

(3.) 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.