JUDGMENTBY: THOMSON LP, BARAKBAH CJ (MALAYA) AND WEE CHONG JIN CJ (SINGAPORE)

THOMSON LP This is an appeal in a trade mark case against a decision of the High Court in Singapore.

The original plaintiff, who is now dead, and, after his death, his representatives carried on the business of making and selling cooking oil consisting of a mixture of palm oil, mutton fat and coconut oil. This unattractive but no doubt wholesome substance was packed in tins of various sizes each of which bore a yellow label. This label had on it printed matter in red and green which, among other things, set out the plaintiffs name and stigmatised the contents as "Chop Bunga" or "Flower Brand". There was also a picture of a flower of the hibiscus type with red petals and green leaves enclosed in a red circle. In 1952 this flower picture was registered under the Trade Marks Ordinance, 1938, and the plaintiffs name was entered in Part A of the Register as proprietor of it in respect of "vegetable ghee" for cooking purposes.

Some time in 1959 the defendants started manufacturing and selling a similar sort of cooking oil in tins. These tins also bore a yellow label on which was printed in red and green the name first of the first defendant, and later of the second defendant, and the word "Sunflower". There was also a picture of a flower with red petals and green leaves which although it bears little resemblance to any variety of helianthus hitherto produced by nature is not the same flower as that shown on the plaintiffs labels. Under the picture of this so-called sunflower there were the words "Trade Mark", though it is common ground that the device has not been registered under the Trade Marks Ordinance.

On this the original plaintiff commenced proceedings on 6th August, 1959. He claimed that the defendants had infringed his registered trade mark and had passed off their goods as his and he asked for injunctions and for damages or alternatively an account of profits.

There were very considerable delays with which we are not concerned here but ultimately the case came on for trial before Winslow J. in April, 1963, by which time the plaintiff was dead and for him hibiscus had faded and asphodel had bloomed in its place. In the event the trial judge found there had been both infringement and passing off. He granted injunctions as prayed and made an order for an account of profits made by the defendants from the sale of their oil bearing the sunflower label.

Against that judgment the defendants have now appealed.

I would observe, in limine, that on the materials before us there is considerable doubt as to who and what the appellants are. It is clear enough that there must have been in existence two natural persons who were concerned in the manufacture and sale of the cooking oil bearing the sunflower brand and that two natural persons have been content to carry on the present litigation, in which they have been jointly represented. It is not, however, clear whether the natural persons in question have always been the same. No question arising out of this has been raised at any time, however, and we must therefore deal with the matter on the assumption that the appellants who are now before us are the same as the persons whose conduct was complained of by the plaintiff and who were originally sued, or their representatives.

Having made that observation I proceed to consider the evidence. This can be divided into two parts.

First, there were tins of the plaintiffs oil bearing his label and tins of the defendants oil bearing their label. These labels have been described. It was admitted by both parties that they had sold oil in similar tins bearing similar labels.

Then there was the parol evidence.

It was admitted that for some considerable time, and certainly since before 1952 when his trade mark was registered, the plaintiff had been manufacturing oil and selling it in tins bearing his label.

It was also admitted that the defendants had not co

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