JUDGMENT

Leach, J - The plaintiffs have for more than twelve years been importing into Rangoon and selling in the local market a brand of cheap whisky. The whisky which is now manufactured and bottled in India is known as the "Steamer" brand, the lable on the bottle having as its main feature the picture of a steamer and bearing the "Steamer Brand". The whisky is largely consumed by Corringbi coolies, who know it as the "Jhazz marka" or the "Vada marka", the Hindustani and Telugu words respectively for "Steamer brand". The defendants have a distillery at Moulmein, and since the year 1918 have been manufacturing a similar whisky which they have sold as the "Phoenix brand". The lable used in connection with the sale of this whisky has printed on it the words "Phoenix Whisky" underneath the representation of a phoenix. In the latter part of 1931 the defendants commenced selling their whisky under two new labels. Each of these labels bears the picture of a steamer. On one label the whisky is described as the "Steam Ship Brand" and on the other label as the "Motor Liner Brand". The plaintiffs, charge the defendants with having adopted these new labels in the hope and expectation of stealing part of their trade. They accordingly seek an injunction restraining the defendants, their servants and agents from selling whisky under these new labels or under any label which is a colourable imitation of the label used by them.

2. The plaintiffs are not the manufacturers of the whisky they sell. Until last year the whisky sold by them was bottled by the firm of James Anderson and Company of Calcutta and while the plaintiffs were obtaining whisky from this firm the words "Bottled by James Anderson and Co., Calcutta" appeared on the label. Last year James Anderson and Comapny ceased bottling whisky and transferred this part of their business to Hajee Ismail Sait and sons, Limited, also of Calcutta. The label, however, remained the same, except that for the words "Bottled by James Anderson and Company, Calcutta", there were substituted the words "Bottled by Hajee Ismail Sait and Sons, Limited for Gasper and Co., Rangoon"., When the plaintiffs were dealing with James Anderson and Co. their own name did not appear on the label and it is admitted by the plaintiffs that while James Anderson and company were supplying the whisky the lable belonged to the suppliers and not to the plaintiffs. When James Anderson and Company ceased doing this business they purported to give to the plaintiffs the right to use the steamer mark on the whisky sold by them, but there was no assignment in writing and the plaintiffs did not acquire the business of James Anderson and Co. The plaintiffs, therefore, did not acquire a right in law to the exclusive use of the steamer mark by reason of the fact that James Anderson and Company purported to give the label to them. It does not, however, necessarily follow that the plaintiffs are not entitled to maintain the suit.

3. In their written statement the defendants denied that the labels complained of were fraudulent or colourable imitation of the label claimed by the plaintiffs. It was, however, obvious that this plea could not be maintained in the face of the labels themselves and at the outset it was conceded that if the plaintiffs were entitled to the exclusive use of the steamer mark as far the local market was concerned they would be entitled to the relief sought. The defendants also put forward the plea that the steamer mark was common to the trade. Evidence was led on this issue and it was established that one firm had since 1928 used in connection with the sale of similar whisky in Rangoon the picture of a battleship. There was also some evidence that a second firm had used the picture of a sailing ship as its mark and that a third firm had used the picture of a cruiser, but neither of these marks-had been used for more than a year and their use had never been brought to the notice of the plaintiffs. The learned advocat