JUDGMENT

Mears, C.J. - This suit was filed originally in the Court of the Subordinate Judge of Cawnpore. By consent it was transferred to this Court, partly on the ground of expedition but mainly because the case was stated to be one of great general importance to the manufacturing community. The plaintiffs, Swadeshi Mills Co., Ltd., are manufacturers of various kinds of cotton goods and the undertaking is managed by the well-known firm of Messrs. Tata & Co. The original defendant was a firm known as Messrs. Juggi Lal Kamlapat. After the suit was filed, it was discovered that the business had been incorporated as a private company and, therefore, the company was added as the second defendant.

2. The plaintiffs' case, as disclosed in the plaint and put forward by counsel when the issues were framed, was that they had been, since 1888, manufacturing cotton goods of various kinds and used from the very first a lotus flower as their characteristic trade-mark. It was stated that since 1909 their principal trade-marks had taken three shapes. One is a coloured label bearing a lotus flower and some lotus buds emerging from water as shown by the topmost figure on the left hand of the photograph marked as Exhibit 3, dated the 19th of May 1926; Ex. E is the actual label and shows a dark red and pink flower. It is the one almost invariably used, but at times on a very small portion of their goods the plaintiffs use a plain blue lotus flower (Ex. J). Ex. E is, not unlike the natural flower. The blue lotus is fanciful.

3. The second is an oval impression stamped by mechanical means on cloths and individual garments, bearing the same flower and buds as the coloured label, with a letterpress indicating the name of the plaintiffs. Exs. No. 3 and No. 3A are the impressions made on the goods. Below the oval is an enclosed space within which the word 'kamalchap' appears in Gujrati language. The third is shown in the middle photograph on the left hand side of the same photographic Exhibit 3 and has been described, throughout the evidence as a trefoil Ex. F is the impression as it appears on cloth. The letterpress contains the name of the plaintiffs and an inscription to the effect that the mill is a manufacturer of Indian goods and is Indian in its every feature. The plaintiffs used these marks singly or in combination to indicate goods manufactured by them. The coloured lotus flower (Ex. E) was used either by itself or in conjunction with the trefoil (Ex. F). Other cloths bore the oval impression No. 3 together with the pediment of 'kamalehap' and the 'trefoil' below it.

4. The plaintiffs alleged that by thus using those impressions and labels for a long time they have acquired for their goods the popular name of 'kamalchap' (lotus ticket) and that these marks have become known to the trade, and the public as indicative and exclusively so of goods of their manufacture and of their manufacture alone. It has also transpired, in the course of the evidence, that the plaintiffs claimed that their goods were also known as 'phulchap' (flower print). The plaintiffs' goods have a wide sale over a great part of India, but the places with which this action was concerned were principally Cawnpore, Delhi, Calcutta and Amritsar. The defendants, so the plaintiffs alleged, with the object of stealing the trade of the plaintiffs, manufactured cotton goods in their mill and affixed and applied labels and marks similar to those, of the plaintiffs, the intention being to pas off the defendants' goods as and for the goods of the plaintiffs. The plaintiffs say that they discovered that this was being done by the defendants in July 1924 and called upon them to desist. The defendants, however, refused to do so and the plaintiffs therefore brought the suit. The plaintiffs prayed for an injunction restraining the defendants from using their trade-marks, asked for delivery of the goods of the defendants bearing those marks and for an account. Alternatively, they asked for dama