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TMI Blog1922 (8) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... d as high as English bar gold and higher than Bombay Mint gold (see Ex. F.) 3. The defendant bank was registered in Bombay in March 1920 as a private limited company having for its objects, amongst other things, the carrying on of all kinds of banking business in Bombay and such other parts of the world as the directors may determine including the buying and selling of bullion and specie, and the buying, selling, melting and refining of metals and manufacturing products thereof for commercial purposes (see Ex. B). The office of the defendant bank is within the Fort of Bombay. The defendant bank has not hitherto a single pie in cash by way of capital nor has it commenced its business. The defendants are awaiting the decision of this suit, as stated by Mr. Parekh, one of the directors of the defendant bank, for starting their business. 4. The plaintiffs' case is that the name of the defendants is a colorable imitation of the plaintiffs' name and is calculated to deceive ordinary persons and to induce them to do business with the defendants under the supposition that they were dealing with the plaintiffs and that serious injury will result to the plaintiffs if the defend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and carries it on under a given name with some other person who assumes the same name or the same name with a slight alteration in such a way as to induce persons to deal with him in the belief that they are dealing with the person who has given a reputation to the name: Lee v. Haley (1869) L.R. 5 Ch. App. 155, 161; Hendriks v. Montagu (1881) 17 Ch. D. 638, 649. The principles enunciated by the Earl of Halsbury L.C. in the North Cheshire Brewery's case, referred to above, have a material bearing on the present case. In that case the Manchester Brewery Company was the plaintiff. The plaintiff company had carried on business under that name for years. The defendant company bought an old business called The North Cheshire Brewery Ltd. and then got themselves incorporated and registered under the name of The North Cheshire and Manchester Brewery Co. Limited. The plaintiff company complained that the name of the defendant company was calculated to induce the belief that the plaintiff company had ceased to carry on business as a separate company and that the defendant company was an amalgamation of the plaintiff company and the North Cheshire Brewery Limited, and it sued the def ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , but as you object to our name we will change it so as not in any way to interfere with you,' Instead of doing that they assert their right to use the name and file a mass of affidavits in support of their claim to do what they have threatensd and continued to do; and they seek to justify their name on the ground that the arm of the Court is not long enough to reach a defendant who takes a name similar to that of the plaintiff, unless it can be shown that such name is calculated to deceive in the sense that a person desiring to be a customer of the plaintiff is induced thereby to become a customer of the defendant. And they say that there can be no deception here because they are wholesale people while the plaintiff is a retailer, that it is true that they have the fullest possible power under the memorandum and articles of association to carry on a retail business, but that at the present moment they have no such intention. I should be very sorry indeed if the jurisdiction of the Court should be regarded as so limited... I know of no authority, and I can see no principle, which withholds us from preventing injury to the plaintiff in his business as a trader by a confusion Whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the other, and the gold bars of the defendant bank being mistaken for those of the plaintiff bank. They also said that the plaintiff bank was known as National Bank and that the bar gold sold by the plaintiff bank was known as the National Bank bar gold. They all said that the similarity of the two names was so great that the use by the defendants of the name National Bank of Indore would have the effect of misleading people into supposing, when they were in truth dealing with the defendants, that they were dealing with the plaintiffs. The plaintiffs also exhibited several letters addressed to them as National Bank (Exh. E). Exh. D is a specimen of gold bars sold by the plaintiff bank. 11. The only witness called for the defendants was Mr. Parekh Assistant Manager of the Bombay branch of the Bank of Morvi, at Pydhowni. In his examination-in-chief he said that he had been to Indore and that he had ascertained that wheat seeds and cotton were exported from Indore, and that the object of assuming the name National Bank of Indore was to finance the export trade of Indore. He also said that Vasanji Bhagwandas was doing some work in Bombay for H.H. the Maharajah of Indore, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I know that gold bars are sold in small bits by dealers. Question-Assume a gold bar bearing the name of National Bank of Indore is sold by the defendant bank. Assume further that a dealer who buys the bar from you cuts off the piece bearing the letters ore ; there is nothing then to prevent you from showing the rest of the bar and selling it as the bar of the National Bank of India; is there ? Answer-No merchant would practise such a fraud. If he wanted to commit a fraud, he could. A person who buys a piece of gold would get itassay ed before it is bought. He would do it if he was not satisfied with the name. No man would ever buy gold without assaying it. Question-Do you mean to say that any man buying gold would get it assayed before buying it ? Answer-Not necessarily. If the words ore were cut off and the rest of the piece sold, it is possible that the piece sold might be passed off as a piece of the gold bar of the National Bank of India. 13. Mr. Parekh also said that the defendant bank had not done any business and the reason which he gave was that as the plaintiffs had taken objection to the defendants' name he thought that the name of the defen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kely to be deceived. Further, as observed by Sir George Jessell in The Guardian Fire and Life Assurance Company v. The Guardian and General Insurance Company (Limited) (1880) 50 L.J. Ch. 253, 255, the public are careless, and it is no use supposing that if they paid a very moderate attention to names they would see they were not the same, but only similar. The plaintiffs have branches in several parts of India outside the Presidency towns. It may be that the chances of deception in Presidency towns are not great, but this cannot be said of other places. Again, the plaintiffs have no branches in places like Surat, Broach, Ahmedabad etc. If the defendants opened branches in those places, it was, I think, highly probable that the public of those places would be deceived having regard to the close similarity between the two names. 16. It was also argued for the defendants that the Court had no power in this suit to enquire whether, if the defendant company sold gold bars bearing its name on them, they were likely to be confounded with the gold bars of the plaintiff bank, the reason given being that to allow such an enquiry would be to convert the suit into a trade-mark suit. But a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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