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TMI Blog1934 (3) TMI 27X X X X Extracts X X X X X X X X Extracts X X X X ..... o. In 1908, he changed the name of the business to Bombay Dyeing and Cleaning Co. At first the defendant financed the business to some extent. In 1912 the plaintiff went to England for special training as a dyer and cleaner. In May 1932 the plaintiff removed his business to No. 10, Chowringhee, and, for some five years before that date, he had occupied the first floor of No. 1, Linesay Street, as his business premises. In June 1932, the defendant filed a suit against the plaintiff for partnership accounts and obtained the appointment of a receiver. On 8th June 1932, this suit was settled and a consent decree passed, according to which the defendant was to receive ₹ 4,000 and the plaintiff was declared to be entitled to the goodwill and other assets of the business of the Bombay Dyeing and Cleaning Co. 3. In August 1932, the defendant became a tenant of the first floor of No. 1, Lindsay Street, and started a business of dyers and cleaners under the style of Bombay Art Dyers and Cleaners. This suit was filed on 17th March 1933, and, on an application for an ad interim injunction, an order was passed restraining the defendant from representing himself as a late partner i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble to decide how far that confusion was attributable to the errors of the writers, and how far to the fact that the defendant was occupying the plaintiff's old premises. The evidence as to how the letters were directed was, in my opinion, also admissible in connexion with the plaintiff's claim to six different names, and is material on the question as to the form of the injunction. 6. The undisputed evidence is that the defendant secured the premises, which he knew had been formerly, and then but recently, occupied by the plaintiff. He put up signboards like the plaintiff's old signboards in size and shape. On those signboards-or some of them-the prominent word is Bombay -and his case is that, although some of the plaintiff's signboards contained the words Art Dyers, it was sufficient for him to call his business Bombay Art Dyers and Cleaners, to render it unlikely that it would be taken by the public to be the old business carried on under the name of Bombay Dyeing and Cleaning Company. It is suggested that Bombay has a reputation for dyeing and cleaning, and that was one reason for selecting the word Bombay and another reason was because the defendant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was that he went to arrange for some dyeing works for his firm and entered the defendant's shop and asked for favourable terms as he came for Messrs. Hall and Anderson, who were, as he told the man in the shop, old customers. Apparently, he obtained the desired terms. He then sent goods to be dyed and those goods were delivered to the plaintiff. The plaintiff telephoned and finally secured the order. Now it is quite clear that the assistant, an intelligent looking man and certainly an intelligent witness, took the defendant's shop to be the shop with which his firm had previous transactions. It may be that the position of the shop contributed to his error, in fact that is quite likely, but, in my opinion, the name used by the defendant was the chief contributory cause of the error. From what he said to the defendant or whoever was in the shop, there could have been no doubt about it in the mind of the person in the shop that the witness thought it was the same old shop. Advantage was taken of his error. I see no reason whatsoever for doubting the accuracy or truthfulness of this witness. In my opinion, his evidence not only shows that a reasonable man took the defendant' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll and even if it were, its value is a matter of guess work. Mr. Pugh in his very able argument contended that the defendant was entitled to occupy the premises vacated by the plaintiff, and none the less because there was a likelihood of old customers coming to those premises. That is obviously correct. He then argued that the defendant was entitled to try to attract the customers of his rivals. That also is correct-provided it was not done by representing his business to be the plaintiff's business. 10. The next point was that the fact that letters were misdelivered or misdirected gave no cause of action. For this proposition he cited Maikle v. Williamson (1909) 26 RPC 775, where however their Lordships pointed out that there was no proof that the defendant retained the plaintiff's letters and no suggestion that the defendant intended to mislead the plaintiff's customers into a belief that his business was the plaintiff's. Reliance was also placed on the fact that the defendant has sent circular to the old customers in which he clearly stated that his was a new business. That was a material point, in my opinion, in a case of this nature, though it has been held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rotest but took no further steps. Apparently, it is a business as its proprietor said content with a profit of 10 per cent. There was another business called Bombay Laundry. That was started in 1914. It issued handbills, cards and price lists. It carries on business at 93, Wellesley Street and has five branches. Apparently this also catered for poorer persons than the plaintiff's customers, but it also undertook dyeing and cleaning work. It was suggested that there was also a business in Harrison Road called New Bombay Dyeing and Cleaning, but it does not appear that it exists. It was argued that the word Bombay was common to the trade. But this is mot a case in which a trade mark is claimed. The fact that two other firms used Bombay in that trade as part of their business names in my opinion has little bearing on whether the defendant's use of the name Bombay Art Dyers and Cleaners is likely to lead to his business being taken to be the plain-tiff's business. As was said in Dunlop Pneumatic Tyre Co., Ltd. v. Dunlop Motor Co. (1907) AC 430 the locality in which the two firms did business and the articles which they sold are material points. In fact, the more com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is evidence of an intent to create or foster a mistake. On the evidence in this case, in my opinion, the plaintiff has entirely failed to establish any right within the first class. That would be an extremely difficult matter especially in the case of a geographical name, and that the name of a presidency and of its chief city. What he has established, and the defendant has practically admitted, is that he had a business with a reputation. The next point that he had to establish was that the name, adopted by the defendant, was likely to lead the public to mistake the defendant's business for the plaintiff's. It would not suffice to show that thoughtless persons might, or did unwarrantably, jump to the conclusion that the defendant's shop was the plaintiff's. The curious part of this case was that both sides wanted to establish that Bombay had a secondary meaning and connoted skilful dyeing and cleaning, the plaintiff, claiming that his efforts had led to that result, and the resulting reputation was attached to his business; the defendant claiming that the city or the presidency of Bombay had earned that reputation. The defendant supported his contention wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne as descriptive of ale) on the ground that it was better to make it comprehensive and not to leave anything in doubt to be decided in proceedings for contempt. That impressed me but at the same time all the Lords present were satisfied with the form of the injunction as to the firm's name. 17. Only one case was cited where the injunction, in respect of a business name, was in the form desired by the plaintiff-Pinet case (1897) RPC 65, where the defendants were found to have exploited the plaintiff's reputation. The unreported decision of Page, J., as he then was, in Moolji Sicca v. Ramjan Ali 1930 Cal 678, was relied on by the plaintiff, but it was a case about a trade mark and in fact the injunction was in the usual form. In Lotus Limited v. Nasiunessaba Begum 1934 Cal 600, the injunction restrained the use of the word Lotus altogether in connexion with boots and shoes, but that was a case of a trade mark and of a fancy word used as a trade mark. I am not suggesting that a different principle applies to trade marks, but, in my opinion, it is easier to obtain an injunction in the desired form in the case of a fancy word which is a trade mark, and it is to be observed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... received by the defendant from persons who had been at any time customers of the plaintiff while he was at 10, Chowringhee or at 1, Lindsay Street should be ascertained and 40 per cent of that sum awarded to the plaintiff-40 per cent being the percentage of profit made by the plaintiff-on the ground that every reasonable presumption should be made against a man who traded under another's reputation. But having regard to that decision that would be an erroneous application of the principle on which I relied, and it seems, that I should accede to the request of counsel and assess the damages. The Judicial Committee allowed the plaintiff's usual percentage of profit on the difference between the plaintiff's usual gross trade earning before the unfair competition began and his actual earnings thereafter, with a lump sum for expected increase of business. I must endeavour to apply this method. The first difficulty is that the plaintiff admits that trade depression affected his business; that seems to eliminate any increase of business; and he admits that he cut down his advertising and it is also contended that his business was affected by removing from 1, Lindsay Street to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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