The Hon'ble Bombay High Court in [Anglo-Indian Drug And Chemical Co. v. Swastik Oil Mills Co. Ltd. AIR 1935 BOMBAY 101, dated 20 April, 1934] held that the plaintiffs failed to establish that the use of the number "777" by the defendants on their bar soap amounted to an infringement of the plaintiffs' trade-mark.
Facts of the Case:
The Petitioner, Anglo-Indian Drug And Chemical Co., was a company carrying on the business of manufacturing and selling drugs, patent medicines, hair oils, perfumery, and toilet requisites in Bombay for several years. Prior to August 24, 1922, one Mulji Premji Rathod was the sole proprietor of the Kathiawar Trading Company and the Bombay Perfumery Manufacturing Company. The Kathiawar Trading Company had been manufacturing certain toilet preparations bearing the number "777", which Mulji Premji had declared as his trade-mark.
On August 24, 1922, Mulji Premji sold both these concerns, along with the goodwill, stock-in-trade, and the right to the exclusive use of the names of the two businesses and the trade-marks, including the number "777", to Keshavlal Vallabhji Shah, a partner in the Petitioner's firm. The Petitioner alleged that since 1922, they had been manufacturing and selling various toilet preparations, including hair oils and perfumes, under the trade-mark "No. 777" in the name of the Kathiawar Trading Company.
Around February 1933, the Petitioner began manufacturing soap called the "Keti Turkish Bath Soap", bearing the mark "No. 777". Since about August 1932, the Respondent, Swastik Oil Mills Co. Ltd., had been manufacturing and selling bar soap with the number "777" underneath the words "Vegetable Soap Washes Well". The Petitioner alleged that the use of the number "777" by the Respondent on their bar soap was calculated to deceive purchasers into believing that the bar soap was manufactured by the Petitioner.
The Petitioner filed the present suit on May 18, 1933, seeking an injunction to restrain the Respondent from using the number "777" on their bar soap, alleging infringement of their trade-mark.
Issue:
Whether the use of the number "777" by the Respondent on their bar soap amounted to an infringement of the Petitioner's trademark "No. 777".
Held:
The Hon'ble Bombay High Court in the judgment dated April 20, 1934 (Anglo-Indian Drug And Chemical Co. vs Swastik Oil Mills Co. Ltd.) held that:
The Court held that the Petitioner had established that their toilet preparations, namely, various hair oils, scents, and perfumes, sold under the trade-mark "No. 777" in the name of the Kathiawar Trading Company, had acquired a wide reputation and commanded an extensive sale in the market.
However, the Petitioner failed to prove that bar soap fell within the description of "toilet preparations" or that it was usually manufactured and/or sold in India by persons manufacturing and selling such toilet preparations as the Petitioner.
The Court observed that the evidence did not justify the conclusion that there was a close connection in the trade between "toilet preparations" and bar soap.
The Court further held that there was no reasonable probability of deception as alleged by the Petitioner, as the Respondent's bar soap was sold in the market as "Swastik soap", and the likely purchasers of bar soap were different from those who purchased hair oils and perfumes.
The Court opined that the use of the identical number "777" by the Respondent did not indicate an intention to deceive, considering the circumstances such as the prominent display of the Swastik mark on the soap and the open sale of a substantial quantity of the bar soap before the suit was filed.
Consequently, the Court held that the use of the number "777" by the Respondent on their bar soap did not amount to an infringement of the Petitioner's trade-mark "No. 777".
The Court dismissed the Petitioner's suit and held that the Petitioner was not entitled to the injunction claimed against the Respondent.
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