9911796707
TMI Blog2008 (5) TMI 701X X X X Extracts X X X X X X X X Extracts X X X X ..... that not only in respect of Hogmanay, opposition was also made in relation to Old Angus in Class 32 which bears the name of a county in Scotland and, therefore, evocative of Scottish origin although the product was a Rum and not Whisky . If the respondent No. 1 took such actions in respect of trade marks Hogmanay and Old Angus in 1974 and 1979, one fails to understand as to why a similar action was not taken in relation to Peter Scot. The principles of waiver and acquiescence in a case of this nature are applicable. Apart from the ordinary rule of waiver of a right expressly provided for in a case of passing off, the court has consistently been noticing development of law in this field. Holding that the cause of action filed in the suit in question was not the same on which the earlier suit was passed and further opining that the cause of action for filing the suit was a continuous and recurring, infringement of the plaintiff s trade mark by the respondents continuously till the date of filing of the second suit, it was held that the presence in the register of a mark was a continuous wrong. However, it is not necessary to delve deep into the matter any further as we have held here ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 Act is concerned, having regard to the provisions of Sections 20(2) and 26(2), we are of the opinion that the 1999 Act will have no application. Thus, the impugned judgment is set aside. The appeal is allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... rectification is not maintainable due to any mis-joinder of Applicants; (3) Whether the impugned mark was not distinctive of the goods of the registered proprietors at the commencement of the rectification proceedings; (4) Whether the impugned registration contravenes Section 11 at the commencement of rectification proceedings; and (5) Whether the mark is liable to be rectified and if so, in what manner. 9. While opining that the 1st respondent has no locus standi to maintain the said application for rectification, it upheld the locus standi of the 2nd respondent. As regards Issue No. 2 is concerned, it held that the mis-joinder of the applicants is not fatal. Issue No. 3 which was to the effect that whether the impugned mark was not distinctive of the goods of the registered proprietors at the commencement of the rectification proceedings, it was answered in favour of the appellant. 10. Issue No. 4 which primarily concern us was discussed by the 3rd respondent at some details. It was held that the mark has been used deceptively for long time and, although there is also unexplainable and inexcusable delay on the part of the respondents in filing the rectification applicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt the conclusion that there has been acquiescence. 15. Noticing that the appellant had neither adduced any evidence nor cross-examined the deponents of the affidavits, it was held: It is unfortunate that the appellant had chosen to refrain from placing any material before the authority to refuse the claim for rectification. Apparently, appellant did not have great faith in the validity of the registration and did not consider it worthwhile even to cross-examine the witnesses who had filed the affidavits in support of the application for rectification. It is evident that adoption of the mark 'Peter scot' by the appellant was for the reasons mentioned in the affidavit of Peter Jeffery Warren. The mark was adopted apparently with a view to take advantage of the good will associated with Scotch whisky by using the word 'Scot' as part of the trade mark for the whisky manufactured by the appellant. As regards the quality of the affidavits it was held: The criticism leveled against the deponents of some of the affidavits filed by the respondents as evidence though justified to some extent does not help the appellant to avoid rectification. The statutory standard is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to waiver, if not abandonment, of their right as any order passed for rectification of the mark being unconscionable and inequitable, the same should not have been allowed. 4. The word 'Peter Scot' allegedly being evolved of Scotland cannot be held to be a subject matter of passing off as : a) Purchasers of the same are discerning; b) They are aware of the brand which they would be purchasing ; c) Rich and wealthy people would only ordinarily purchase goods like Scotch Whisky and they being literate cannot possibly be pulled by the word 'Scot' knowing that they are purchasing Scotch Whisky, particularly in view of the fact that in the label as also in the box, it has categorically been mentioned that the product is a 'PRIDE OF INDIA' and is manufactured at Bangalore in India; 5. The Division Bench committed a serious error insofar it failed to take into consideration the aforementioned arguments of the appellant, although categorically noticed by it, so far as if the label is to be looked by in its entirety, the emblem of Rampant Lion with the words 'Distilled from the Finest Malt and Blended with the Choicest Whiskies by Scotch Experts under G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g whisky bearing the name of Peter Scot which having not been controverted or rebutted would clearly go to show that any ordinary consumer would tend to believe that Peter Scot is a Scotch and not an Indian Whisky. (vii) The label used by the appellant clearly suggests that it is a Scotch Whisky and not of Indian origin. (viii) The provisions of the 1999 Act are not applicable to the facts and circumstances of the present case. 18. Before adverting to the rival contentions we may notice some of the provisions of the Act. 19. Sections 2(1)(d) ; 11, 27(2); 56 and 109 of the Act read as under: 2 - Definitions and interpretation-(1) In this Act, unless the context otherwise requires, (a) to (c) ... (d) "deceptively similar":--A mark shall be deemed to be deceptively similar to another mark if it so nearly resembles that other mark as to be likely to deceive or cause confusion; 11 - Prohibition of registration of certain marks--'A mark' (a) the use of which would be likely to deceive or cause confusion; or (b) the use of which would be contrary to any law for the time being in force; or (c) which comprises or contains scandalous or obscene matter; or (d) wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion, order or direction (2) Save as otherwise expressly provided in Sub-section (1) or in any other provision of this Act, an appeal shall lie to the High Court within the prescribed period from any order or decision of the Registrar under this Act or the rules made there- under. (3) Every such appeal shall be preferred by petition in writing and shall be in such form and shall contain such particulars as may be prescribed. (4) Every such appeal shall be heard by a single Judge of the High Court: Provided that any such Judge may, if he so thinks fit, refer the appeal at any stage of the proceeding to a Bench of the High Court. (5) Where an appeal is heard by a single Judge, a further appeal shall lie to a Bench of the High Court. (6) The High Court in disposing of an appeal under this section shall have the power to make any order which the Registrar could make under this Act. (7) In an appeal by an applicant for registration against a decision of the Registrar under Section 17 or Section 18 or Section 21, it shall not be open, save with the express permission of the court, to the Registrar or any party opposing the appeal to advance grounds other than those recorded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant that the mark had not become distinctive. The respondents' case is based on the premise that the same was contrary to Section 11 of the Act. 24. In support of their application, the respondents raised the following grounds: 1) The mark is not distinctive. 2) It was not capable of distinguishing itself as the goods of the appellant. 3) The use of the mark is likely to deceive or confuse. 4) Non-user of the mark. 25. They have succeeded before the learned Magistrate only on the third ground. The principal question which arises for consideration is as to whether the term 'Scot' would itself be a sufficient ground to opine that the mark 'Peter Scot' is deceptive or confusing. Indisputably the onus of proof would be open the respondents. The question arises is as to whether they have discharged the same or not. RE: ISSUE No. 1 26. Ian Barclay is admittedly the in-house Solicitor of the respondents. They have not only been filing actions against several persons infringing the said mark in India but also in several other countries like Australia and United Sates of America. Ian Barclay in his affidavit stated: The first applicant received ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions of the Limitation Act do not as such apply to the granting of relief under Article 226. It appears to us however that the maximum period fixed by the legislature as the time within which the relief by a suit in a civil Court must be brought may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Article 226 can be measured. The court may consider the delay unreasonable even if it is less than the period of limitation prescribed for a civil action for the remedy but where the delay is more than this period, it will almost always be proper for the court to hold that it is unreasonable. The period of limitation prescribed for recovery of money paid by mistake under the Limitation Act is three years from the date when the mistake is known. If the mistake was known in these cases on or shortly after January 17, 1956 the delay in making these applications should be considered unreasonable. If, on the other hand, as Mr Andley seems to argue, that the mistake discovered much later this would be a controversial fact which cannot conveniently be decided in proceedings. In either view of the matter we are of opinion the orders for refund made by the Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plication and application for rectification and, thus, should be considered only from that point of view. Registration of a trade mark is governed by the provisions of the Act. Section 9 thereof provides for restrictions for registration in Parts A and B of the Register unless the essential particulars laid down therein are satisfied. It provides for a detailed enquiry. An advertisement has to be issued. Objections are to be called for. Only upon proof of existence of one or the other essential particulars therein and upon consideration of the objections which may be raised therein, the registration of mark may be allowed. Sections 10 to 14 provide for prohibitions. The prohibitory provisions, therefore, are required to be taken into consideration for the purpose of registration of the mark. The question as to whether the use of a mark would likely to deceive or cause confusion so as to disable the Registrar from registering the mark as a trade mark would be necessary to be considered only in the course of the enquiry conducted therefore. A Registrar of Trade Mark is not supposed to know that there exist other marks which are registered or which would deceive or cause confusion wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Anr. AIR1958Bom56 ] 40. In determining the said question, therefore, conduct of the person aggrieved in filing the application for rectification would be relevant. 41. For the aforementioned purpose, whether it is a class or group action or a private action although would be relevant but may not be decisive. It is one thing to say that class or group action will receive special attention of the statutory authority vis-a-vis a private action. But, in both types of cases, public interest should remain uppermost in the mind of the authority. The question which is required to be posed therefore would be as to whether the public in general or the class of bias would be deceived or be confused if the existing mark is allowed to remain on the register. Thus, deceptively similar or confusion is the principal criteria for determining applications both for registration as also for rectification. 42. We have noticed hereinbefore that it is not the case of the respondents that any fraud was practised by the appellant. 43. Appellant started manufacturing of the product as far back as in the year 1968. It marketed two brand names, viz., Peter Scot and Red Knight. It is said to have been done ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n's Old Scot) (Bombay High Court). 8. SWA and Ors. v. The Ugar Sugar Works Ltd. (Appeal Order) (Bombay High Court). 9. SWA and Anr. v. Rangar Breweries Ltd. (Grand Scot) (Bombay High Court) 10. SWA and Anr. v. Swaroop Vegetable Products Industries Ltd. and Ors. (Final Order) (Delhi High Court) 11. Scotch Whisky Association v. Dyer Meakin Breweries Ltd. (Highland Chief) - 12. Dyer Meakin Breweries Ltd. (now known as Mohan Meakin Breweries Ltd.) v. The Scotch Whisky Association - 17(1980)DLT466 (DB) 13. SWA and Anr. v. Rheea Distillers (Scotch Terrier) -(The Court of Addl. civil Judge, Sr. Division - Margao, Goa). 14. William Grant & Sons Ltd. v. McDowell & Co. Ltd. (Glenfiddich Case) 55(1994)DLT80 15. Srilab Breweries Pvt. Ltd. v. Scotch Whisky Association (Rare Blend) WA and Anr. v. Forbes Camphell & Co. Ltd. (Glen Forbes, Blended with the finest Scotch) - (Bombay High Court) 16. SWA and Anr. v. Pravara Sahakar Shakar Karkhana LTD AIR1992Bom294 . (Drum Beater, Gold Tycoon) (Bombay High Court) 17. SWA and Anr. v. Scottish Distilleries and Ors. (Macqueen and Black Kilt) (Bombay High Court) 18. SWA v. Silver Oak Blenders and Bottlers Private Ltd. and Anr. (Wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;Old Angus' in 1974 and 1979, one fails to understand as to why a similar action was not taken in relation to Peter Scot. 49. Barclay, in his affidavit, attempted to give an explanation therefore stating: 43. Proceedings in respect of the registration of the mark 'HIGHLAND CHIEF' were pending in the Indian Courts at the relevant time. The 1st Applicant succeeded in these proceedings before the Delhi Court in 1971 but thereafter the matter was taken to the Division Bench of the Delhi High Court where the 1st Applicant also succeeded. However, the matter was thereafter taken to the Supreme Court. The 1st Applicant did not appreciate, that it would take so long to obtain a final judgment. The Judgment from the Supreme Court would be binding on all tribunals in India. At issue in the said Appeal was registration of words, or devices or marks or labels or descriptions evocative of Scotland for use on Indian Whisky. In this connection I crave leave to refer to and rely upon the judgment of the Delhi High Court (see Exhibit X-4). I say that the Appeal to the Supreme Court from the same judgment had not yet been decided. 44. I say that the 1st Applicant, having failed to l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... own merit. 54. Mr. Desai himself has relied upon a decision of Chagla, C.J. of the Bombay High Court in Ciba Ltd. Basle Switzerland (supra). The learned Chief Justice therein recorded his opinion, thus: 10. The second contention in which there is much more force is that the appellants have come to file this application under Section 46 after considerable delay and no relief should be granted to them. It is true that the granting of relief under Section 46 is a discretionary relief, but it is equally true that the Legislature has not laid down any period of limitation for making an application under Section 49. Kerly at p. 271 states: "The delay of the applicant in coming to the Court to ask for rectification of the register is not of itself any bar to his application, and the marks have been removed or varied after being registered for long periods to the knowledge of the applicant...." But at p. 264 the learned author points out that the demerits of the applicant in any such case are irrelevant to the question whether rectification should be ordered or not, for the question is not between the applicant on the one hand and the respondent on the other, but between public and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Investment & Property Co. Ltd. v. Texas Commerce International Bank Ltd. (1981) 2 WLR 554. Whether all five of those probanda are necessary or not, Mr. Aldous submits that to succeed HBZ must at least establish three things. They must show, first, that HBZ have been acting under a mistake as to their legal rights. That, in the instant case, must mean that they were unaware that what they were doing (that is to say, carrying on their business under the name in which they had been incorporated with the active assistance of the plaintiffs' predecessors), constituted any invasion of the plaintiffs' rights. Secondly, they must show that the plaintiffs encouraged that course of action, either by statements or conduct. Thirdly, they must show that they have acted upon the plaintiffs' representation or encouragement to their detriment. 60. Noticing various other decisions, Oliver, L.J., noticing a decision in Taylor Fashions Ltd. v. Liverpool Victoria Trustees Co. Ltd. (Note) [1981] 2 W.L.R. 576 opined: Furthermore the more recent cases indicate, in my judgment, that the application of the Ramsden v. Dyson, L.R. 1 H.L. 129 principle-whether you call it proprietary estoppel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... & Co. v. Boehm. The acquiescence must be such as to lead to the inference of a licence sufficient to create a new right in the defendant as was laid down in Rodgers v. Nowill. 63. The question again came up for consideration before this Court in Ramdev Food Products (P) Ltd. v. Arvindbhai Rambhai Patel and Ors. 2006(33)PTC281(SC) wherein it was held: 103. Acquiescence is a facet of delay. The principle of acquiescence would apply where: (i) sitting by or allowing another to invade the rights and spending money on it; (ii) it is a course of conduct inconsistent with the claim for exclusive rights for trade mark, trade name, etc. 64. The delay by itself, however, may not be necessarily a ground for refusing to issue injunction. It was opined: 106. The defence of acquiescence, thus, would be satisfied when the plaintiff assents to or lays by in relation to the acts of another person and in view of that assent or laying by and consequent acts it would be unjust in all the circumstances to grant the specific relief. It was furthermore observed: 108. Specific knowledge on the part of the plaintiff and prejudice suffered by the defendant is also a relevant factor. (See Spry on E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice which may be caused to the defendant is that by reasons of the plaintiff not acting at an earlier point of time the defendant has been able to establish his business by using the infringing mark. Inordinate delay or laches may be there because the plaintiff may not be aware of the infringement by the defendant or the plaintiff may consider such infringement by the defendant as not being serious enough to hurt the plaintiff's business. Nevertheless, if the Court comes to the conclusion that prejudice is likely to be caused to the general public who may be mislead into buying the goods manufactured by the defendant thinking them to be the goods of the plaintiff then an injunction must be issued. The Court may, in appropriate cases, allow some time to the defendants to sell off their existing stock but an injunction should not be denied. 69. In Mc Donald's Corporation and Anr. v. Sterling's Mac Fast Food Represented by its Partner John Mathew ILR2007KAR3346 , the Karnataka High Court held: 9. Though the plaintiff adopted its registered trade mark BIG MAC in 1968 in USA, in paragraph 7 of memorandum of appeal it is stated as under: 7. The first appellant is the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecurring, infringement of the plaintiff's trade mark by the respondents continuously till the date of filing of the second suit, it was held that the presence in the register of a mark was a continuous wrong. However, it is not necessary to delve deep into the matter any further as we have held heretobefore that the provisions of the Limitation Act, 1963 will have no application in the instant case. 74. It is also not a case where a court has been conferred power to exercise a suo motu jurisdiction. Reliance placed by the appellant in State of Punjab and Ors. v. Bhatinda District Coop. Milk P. Union Ltd. 2007(217)ELT325(SC) , therefore, cannot be said to have any application. 75. Whereas on the one hand Mr. Desai objects to the evidence that was produced before the learned Single Judge with regard to the increase in the volume of sale of Peter Scot, on the other hand, it was urged that if a comparison is made of the Indian whisky and Scotch Whisky it would appear that some Indian whiskies are costlier than some of the Scottish brands. The stand taken by the respondents is self contradictory. We think that their stand is not fair. 76. We, therefore, in the peculiar facts and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15-067, page 456] 82. The Law in this regard has been specifically stated in Kerly's Law of Trade Marks and Trade Names, Thirteenth Edition pg. 600 in the following terms: (3) If the goods are expensive or important to the purchasers and not of a kind usually selected without deliberation, and the customers generally educated persons, these are all matters to be considered. Respondent No. 1 initiated some proceedings in Australia and United States of America. We may notice some precedents operating in Australia and United States of America. AUSTRALIA 83. In Scotch Whisky Association v. Marton De Witt (2008) FCA 73 Federal Court of Australia, was concerned with the question as whether the mark 'GLENN OAKS' was deceptively similar to trade marks that, before the priority date of the Application, had acquired a reputation in Australia for scotch whisky and scotch whisky-based liquors as envisaged under Section 60 of the Trade Marks Act, 1995. In that proceeding also Ian Barclay had affirmed an affidavit in favour of respondent No. 1-Association. As regards the market (s) and consumer knowledge, it was held: 33. There are two classes of consumer in the scotch wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roducts and scotch whisky products. The salesperson in a liquor store is a means by which consumers become knowledgeable about different products. By contrast, consumers would not typically ask a salesperson what a bottle of coke or a new soft drink tastes like. They would purchase the product and try it themselves. Consumers would also read product labels, see that 'scotch whisky' is written on the container, and infer that scotch whisky is made in Scotland. 86. The Court held that both involved and uninvolved purchasers of bourbon and scotch whisky products could not be confused save and except those who are exceptionally stupid or careless. 87. As regards deceptive similarity test, it was held: 66. The key issue under Section 60 is a comparison between the GLENN OAKS mark and marks used before its priority date. The approach in Pianotist Co's Application (1906) 23 RPC 774 at 777 is oft cited. There, Parker J said: You must take the two words. You must judge of them, both by their look and by their sound. You must consider the goods to which they are applied. You must consider the nature and kind of customer who would be likely to buy those goods. In fact, you m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ood of deception arising from the two words conveying the same idea of the superiority or supremacy of the article as a mechanism for making a spray similar to falling rain or artificial rain as it was called during the argument. But it is obvious that trademarks, especially word marks, could be quite unlike and yet convey the same idea of the superiority or some particular suitability of an article for the work it was intended to do. To refuse an application for registration on this ground would be to give the proprietor of a registered trademark a complete monopoly of all words conveying the same idea as his trademark. The fact that two marks convey the same idea is not sufficient in itself to create a deceptive resemblance between them, although this fact could be taken into account in deciding whether two marks which really looked alike or sounded alike were likely to deceive. As Lord Parker said in the passage cited, you must consider the nature and kind of customer who would be likely to buy the goods. A purchaser of spray nozzles and sprinklers would not be likely to be lacking in discernment. He would not be in a hurry to buy. He would not be likely to pay any attention to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ound, connotation and commercial impression. 2. The similarity or dissimilarity of and nature of the goods or services as described in an application or registration or in connection with which a prior mark is in use. 3. The similarity or dissimilarity of established, likely-to-continue trade channels. 4. The conditions under which and buyers to whom sales are made, i.e. "impulse" v. careful, sophisticated purchasing. 5. The fame of the prior mark (sales, advertising, length of use). 6. The number and nature of similar marks in use on similar goods. 7. The nature and extent of any actual confusion. 8. The length of time during and conditions under which there has been concurrent use without evidence of actual confusion. 9. The variety of goods on which a mark is or is not used (house mark, "family" mark, product mark). 10. The market interface between applicant and the owner of a prior mark: (a) a mere "consent" to register or use. (b) agreement provisions designed to preclude confusion, i.e. limitations on continued use of the marks by each party. (c) assignment of mark, application, registration and good will of the related business. (d) laches and estoppe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would understand it as such. We simply do not believe this creates an issue of material fact, especially considering that the labels clearly indicate the products are made in the United States. Moreover, the labels contain no express reference to Scotland nor were the products ever advertised as being of Scottish origin. More importantly, gin, blended whiskey, and vodka are not characteristically products of Scotland. 92. Yet again in Champagne Louis Roederer, S.A. v. Delicato Vineyards 148 F. 3d 1373 the United States Court of Appeals for the Federal Circuit applying the DuPoint (supra) test in a case of wine stated: Like regulatory agencies or other executive tribunals in their subject areas, the Trademark Trial and Appeal Board has acquired a high level of expertise in evaluating the DuPont factors and counter-weighing these factors to reach its ultimate conclusion -- the likelihood vel non of confusion between competing marks. Nonetheless, the Board too should explain with reasonable 'precision' not only its factual findings but the 'theory underlying' its final conclusion. We need to be told and not be 'compelled to guess at the theory' the Board app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was furthermore observed: On comparison of the two marks bearing the aforesaid principles in mind, it is difficult to appreciate as to how there is even a remote possibility of any customer being misled. In my opinion, when a customer goes to a shop to buy the plaintiffs' product, he will not ask for "Duet" or "Gin N Lime" or "Gin N Orange" but he will ask for a "Blue Riband Gin N Lime" or "Blue Riband Tango Gin N Orange". Further having regard to the fact that the customer who is likely 'to buy the products of the plaintiffs and the defendants will be normally educated and discerning type, it is impossible to hold that there is any likelihood of confusion. It is pertinent to note that the plaintiffs have failed to cite even a single instance showing that there was confusion in the minds of the customers. The absence of evidence of actual deception is a circumstance which definitely weighs in favour of the defendants. It is also necessary to mention that the defendants have produced on record voluminous evidence showing that such premixtures are sold by several other companies under the names "American Extra Dry Gin with Lime Duet Plus", "Forbes Two in One Dry Gin and Lim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e respective owners of the marks would also be a relevant factor. [See Pianotist Co.' Application, Re, (1906) 23 RPC 774]. 99. Thus, when and how a person would likely to be confused is a very relevant consideration. 100. Where the class of buyers, as noticed hereinbefore, is quite educated and rich, the test to be applied is different from the one where the product would be purchased by the villagers, illiterate and poor. Ordinarily, again they, like tobacco, would purchase alcoholic beverages by their brand name. When, however, the product is to be purchased both by villagers and town people, the test of a prudent man would necessary be applied. It may be true that the tests which are to be applied in a country like India may be different from the tests either in a country of England, United Sates of America or Australia. We however, do not mean to suggest that in a case of this nature, the Heightened Scrutiny Test should be applied as urged on behalf of the appellant. Bollinger, J. and Ors. v. Costa Brava Wine Coy., Ld. 1960 (1) RPC 16, whereupon Mr. Desai has strongly relied upon, makes such a distinction. Bollinger, J. (supra) was a case on demurrer. It was concerned wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r loss or it must be shown that his case falls within the class of actionable wrongs stating: 'But the law may be thought to have failed if it can offer no remedy for the deliberate act of one person which causes damage to the property of another. There are such cases, of course, but they occur, as a rule, when the claims of freedom action outweigh the interests of the other persons who suffer from the use which a person makes of his own property.' 104. It was in the aforementioned fact situation, the learned Judge proceeded to determine as to whether the description 'Spanish Champagne' is calculated to deceive holding that the plaintiff has a right to bring any action. 105. J. Bollinger and Ors. v. The Costa Brava Wine Company Limited (for short Bollinger II) 1961 (5) RPC 116, however, clearly shows as to what was the test applied. The inference deduced from the evidence adduced was noticed in the following terms: In particular, it appeared from the evidence that Champagne is a wine specially associated with occasions of celebration so that (in addition to sales to persons who regularly buy wine) it is purchased on such occasions from time to time by many perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithout deliberation and the customers generally educated persons these are all matters to be considered.' (That is also a quotation from the same book.) Various other judicial statements are collected in the judgment of the Assistant-Registrar in George Angus & Co.'s Application (1943) 60 R.P.C. 29, at pp. 31-32, to which I was referred. In arriving at the said decision, the following was specifically noticed: Mr. Munday, whose wine business was in Swansea, when asked 'How far do you think the class of customers that you deal with know the origin of Champagne?' replied: 'Limited. Some would know. The first category I mentioned would know a fair amount about it. In the second category some. But there would be a considerable number in my area who would know nothing about it except that it was a wine they wanted for a special occasion or for something in their life they wanted to celebrate with. They would then want that. That is how much they would know about it- just a general outline'. It was furthermore held: There is thus, in my view, a considerable body of evidence that persons whose life or education has not taught them much about the nature and pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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