Judgement

Appeal (No. 18 of 1939) from a decree of a Division Bench of the High Court (March 13, 1935), affirming a decree of the Additional District Judge of Cawnpore (April 11, 1930).

The action out of which this appeal arose was brought on May 27, 1929, by the appellants, Thomas Bear & Sons (India) Ld., to restrain infringement of trade mark rights and passing-off by the respondent, Prayag Narain. The appellants were manufacturers and sellers of cigarettes and of

Law. Rep. 67 Ind. App. 212 ( 1939- 1940) Thomas Bear and Sons (India) Limited V. Prayag Narain

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"Virginia "Birds Eye" tobacco for smoking in pipes. The tobacco was sold in packets and tins bearing a mark the distinguishing feature of which was the representation of an elephant. The goods were well known and asked for throughout India as "Elephant Mark.” The respondent manufactured chewing tobacco, and sold it in packets and tins, on which was the picture of an elephant not unlike that used by the appellants, though there were differences, particularly in colour. In other respects the packets and tins were unlike the containers in which the appellants goods were put upon the market, and the respondents labels bore the