Taraporewala, J.@mdashIn this case the plaintiffs allege that for several years prior to 1914, they had manufactured and sold under the names of
Sanatogen"" and "" Formamint"" certain chemical compounds for use in medicine and pharmacy, that within a short time the said compounds sold
under the name of Sanatogen and Formamint acquired a very high reputation throughout India and the sales thereof were large and profitable and
the names of Sanatogen and Formamint had come to mean chemical compounds of the plaintiff''s manufacture. They further allege that on the
outbreak of the War the said compounds were imported into India by the plaintiff''s London firm until the property and assets of the plaintiffs''
London firm were sold in June 1917 by the controller appointed under the Trading with the Enemy (Amendment) Act 1916 to Genatosan Limited,
that from and after June 1917, the said Genatosan Limited imported the said compounds under the names of Sanatogen and Formamint, that on
the termination of the War the plaintiffs started importing Sanatogen and Formamint from Berlin, and that their original exclusive right to the use of
the said names was by the terms of Treaty of Peace of Versailles restored to the plaintiffs. The plaintiffs further allege that at the end of October
1923, the defendants imported into Bombay two consignments of some substances under the names of Sanatogen and Formamint and were selling
the same at a much lower rate than the plaintiffs'' goods. The plaintiffs charge that the object of ''the defendants in importing and selling the said
goods was to deceive the public and lead them to believe that in purchasing the inferior compounds offered for sale they were buying the genuine
articles of the plaintiffs'' manufacture; and further say that the general make up, marking and appearance of the defendants'' packages, apart from
the use of the names Sanatogen and Formamint, was made to closely resemble the plaintiffs'' packages. The plaintiffs pray for an injunction
restraining the defendants from passing off or attempting to pass off or from enabling others to pass off chemical compounds not of the plaintiffs''
manufacture as the goods of the plaintiffs by use of the names Sanatogen or Formamint and other consequential reliefs.
2. By their written statement the defendants deny that the names Sanatogen and Formamint came to mean chemical compounds of the plaintiffs''
manufacture as alleged by the plaintiffs. They further contend that the trade marks of Sanatogen and Formamint were avoided and removed from
the Register of Trade Marks in October 1916, by and under the order made by the Board of Trade and under rules made under the Patents,
Designs and Trade Marks Temporary Rules Act 1914 Amendment Act and that thereupon the said marks and names became public property
both in England and India. They further contend that Sanatogen and Formamint wore from 1917 to 1923 imported into India by Genatosan
Limited and also by various other persons and that the said names and marks have become public property by reason of common usor. The
defendants further deny that the plaintiffs had the original exclusive right to the use of the said names or that such right is restored to the plaintiffs by
the Treaty of Peace. The defendants admit that they had imported twenty-two cases of Sanatogen and a consignment of Formamint, but deny that
it was inferior to the plaintiffs'' compounds or that their object in importing the said goods was to deceive the public as alleged. They further deny-
that the general make up, marking and appearance of the packages closely resemble the plaintiff''s packages, and allege that the make up of their
packages was of a description common to the trade. The defendants further allege that the plaintiffs have no right to the exclusive use of either the
names Sanatogen and Formamint or to the use of the said get-up. (His Lordship then considered some evidence as to the plaintiffs'' exclusive right
to the use of the names Sanatogen and Formamint and proceeded further.) In respect of rights in trade marks and trade names any rights acquired
by the parties in England have no effect on the rights of the parties in India. The rights of industrial property in India are governed by the laws of
India and are is no way affected by the laws of (England or by the action of parties in England. There is not yet any Registration Act in India for the
protection of rights in trade marks. The trader or manufacturer in India has still to depend upon his common law right for the protection of his trade
mark. It was tried to be argued on behalf of the defendants that the common law right to a trade mark is not a right to industrial"" property in the
same sense as a right in a registered trade mark is in countries where registration of trade marks gives right of property in the trade mark. But if the
evolution of the law in England as to the rights in trade marks and protection of such, rights is considered, one finds that before the Registration
Acts the Equity Courts had by their decisions created a right of property in trade marks in a trader who had acquired a reputation in respect of
goods on which he had used the trade mark. This point is well brought out by Kerly in his Law of Trade Marks and Trade Names, 5th Edition,
page 4, as follows:
An important step was taken in 1838, by the decision of Lord Cottenham in Millington v. Fox that an injunction could be obtained to restrain
infringment of a trade mark, even though the infringement was due to ignorance, and was without fraudulent intent. This decision Jed, by an obvious
deduction, to the establishment of a right of property in trade marks; and, although the nature of this right gave rise to much discussion, and was
defined in different terms by Chancery Judges in subsequent cases, it soon became firmly established, and the protection of trade marks in equity
was expressly baser upon it.
3. Mr. Kerly further goes on to say on the same page:
The trade mark cases, however, were so much the more numerous and important, that, as already stated, a definite property-right in the use of a
trade mark was set up, and the action for infringement became a specialized and distinct form of the more general action to restrain, or to obtain
damages for ''passing of.'' The litigation of trade mark cases was, however, found to be extremely costly, and otherwise unsatisfactory. The
essence of a trade mark right being the reputed association in the market of the symbol in question with the goods of the plaintiff, it was often
necessary to call a large number of witnesses to give evidence of the reputation, especially if the defendant alleged that the pretreated trade mark
was either mere descriptive matter, or was, on any other grounds, a mark common to the trade; and, as infringes were usually persons of no
substance, it was often impossible to recover the costs after the plaintiff had conducted his action to a successful issue. Moreover, success against
one infringer did not relieve the owner of a trade mark from the necessity of proving his title afresh if in any action against another infringer, the
defendant chose to dispute, it.
4. With a view to mitigate those evils, the Trade Mark Registration Act, 1875, was enacted in England and the object of the Act, as stated by
Kerly, at page 6, was twofold:
It was directed, on the one hand to diminish the difficulty and costs of, or to remove altogether the necessity for, the proof of title by use and
reputation, which had cast so great a burden upon the owners of trade marks in proceedings to restrain infringement ; and on the other, to secure
the publication of marks which had been appropriated as trade marks, and to define the rights of their proprietors, for the information of traders
and, further, to limit the classes of marks which should be capable of being so appropriated.
5. Further amending Acts were passed, and the Act now in force is the Trade Marks Act, 1909, as amended by the Trade Marks Act of 1919.
There were prohibitory sections in the said Acts which purported to make registration a condition precedent to a right of action to restrain or to
obtain damages for infringement of trade marks. Unregistered trade marks, notwithstanding the prohibitory sections of the Acts, are in company
cases protected by the Courts in England in the ""passing off "" actions. Section 45 of the Trade Marks Act, 1905, expressly provides that nothing in
the Act shall be deemed to affect rights of action against any person for passing off goods as those of another person or the remedies in respect
thereof. In India there being no Registration Act giving a right of property in trade marks by registration, the only right of action a trader or
manufacturer has is the common law right of action which entitles him to an injunction restraining the use of a trade mark belonging to him if such
use is calculated to pass off the defendant''s gods as the goods of the plaintiff. (His Lordship then found in evidence that there was no doubt that
the public in India knew and believed that the compounds sold under the names of Sanatogen and Formamint were the manufacture of one
particular manufacturer and when they bought the said compounds under the said names they expected to get the compounds manufactured by the
said manufacturer, and there was no doubt the said manufacturers were the plaintiffs.)
6. The sole ground on which, therefore, the defendants could claim to sell their compounds under the names of Sanatogen and Formamint would
be the determination of the said trade mark rights of the plaintiffs.
The right of the proprietor of a mark (subject to the rights of other proprietors, if any, of the same mark) to the exclusive use of it upon the goods
of the kind in respect of which the right existed is determined:
(1) When the mark so used ceases to be distinctive;
(2)when the proprietor is no longer able to use it in the business in connexion with which the right was acquired;
(3) when he has abandoned it;
(4) when he has forfeited his claim, to protection of his right by using the mark deceptively or in a fraudulent trade; and
(5) in the case of the name of an article or substance manufactured under any patent when the patent expires or determines."" (See Kerly on Trade
Marks, page 430. (His Lordship then discussed the evidence and held that the name Sanatogen is still identified m the mind of the public with the
manufacture of the plaintiffs and has not be come a common name of the compound, In respect of Formaint, the evidence of sale of Formamint of
other manufacture in India, between 1917 and 1923, is equally insufficient. There is the evidence of the dealers : no customers are called. For the
last year or so, there is no other Formamint in the Indian market excepting the plaintiffs. That chemical has also acquired a ''great reputation in the
Indian market as admitted by the defendants, and up to 1914 the name Formamint was identified with the, manufacture of the plaintiffs. The
plaintiffs are as much entitled to the use of that name as their trade mark as in the case of Sanatogen. In my opinion the defendants have failed to
prove that the word For mamint became a common name of the compound in the mind of the Indian public.
7. The question as to when a trade mark or a name which is distinctive, becomes public juris, is considered in Ford v. Foster [1872] L.R. 7 Ch.
611. The test is laid down very clearly by Mellish, L. J., at page 628, as follows:
For the reasons given by the Lord Justice James, which I do not repeat, I am clearly of opinion that originally, at any rate, the plaintiff was entitled
to be protected against the use of the word ""Eureka"" by the shirt-makers as a violation of his trade mark. Then the question is, Has it become
pnblici juris? As there is no doubt, I think, that a word which was originally a trade mark to the exclusive use of which a particular trader, or his
successors in trade, may have been entitled, may subsequently become pnblici juris, as in the case which has been cited, of Harvey''s Sauce. It was
admitted that although that originally had been the name of a sauce made by a particular individual, it had become, publici juris, and that all the
world were entitled to call the sauce they made Harvey''s Sauce if they pleased. Then what is the test by which a decision is to be arrived at
whether a. word which was originally a trade mark has become publici juris? I think the test must be, whether the use of it by other persons is still
calculated to decieve the public, whether it may still have the effect of inducing the public to buy goods not made by the original owner of the trade
mark as if they were his goods. If the mark has come to be so public and in such universal use that nobody can be deceived by the use of it, and
can be induced from the use of it to believe that he is buying the goods of the original trader it appears to me, however hard to some extent it may
appear on the trader, yet practically, as the right to a trade mark is simply a right to present the trader, from being cheated by other persons''
goods being sold as his goods through the fraudulent use of the trade mark, the right to the trade mark must be gone.
8. It appears from these observations of Lord Justice Mellish that the Court would require very strong evidence, which would show conclusively
that the mark had come to be so public that nobody could be deceived by the use of it and could be induced from the use of it to believe that he
was buying the goods of the original trader, for refusing protection to the trader who was entitled to the use of the trade mark.
9. Another case on the point, to which I would refer, is the judgment of the Privy Council in National Starch Manufacturing Co. v. Munn''s Patent
Maizena and Starch Co. [1894] A.C. 275 . Lord Ashbourne observes as follows:
Other firms besides the appellants and respondents used the word ''Maizena'' in Australia between 1864 and 1889. Prom 1867 until shortly before
the commencement of this suit no claim was ever made by the appellants to the exclusive use of the word "" Maizena"" in new South Wales. The
present question could not have arisen if the appellants had more promptly availed themselves of the Act of 1865. They did not do so until the year
1889, and the first substantial question in this case is, whether during the twenty-four years which elapsed between 1865 and 1889 the word had
been so used in the colony as to make it no longer registrable as the appellants'' trade mark. If during the period in question the word was only
used in the colony for the fraudulent purpose of counterfeiting their goods, the right of the appellants to register it as their trade-mark would not be
impaired. If, on the contrary, it was used and understood before 1889 as a term descriptive of the article, as a product of maize, and did not
denote such product to be of the manufacture or the merchandize of a particular person, that it must be regarded as having become, in the sense of
law publici juris, and was no longer registrable by the appellants as their trade mark.
10. Then further on he says, (p 280):
No full or exhaustive definition can be given of the circumstances which will make a word or name publici juris, and each case must depend upon
its own facts. In considering the question, it is important to bear in mind that the appellants do not claim any special right to the manufacture of
''Maizena"", or any exceptional method in making their ''Maizena'', and that the respondents and all other people have just as much right as the
appellants have to manufacture the thing - no matter whether it is called ''Maizena'', corn flour, or any other name. Having regard to all the facts
and evidence in the case it is impossible to resist the conclusion that in December, 1889, the date of registration, and for many years previously, the
word ''Maizena'' had become publici juris, and their Lordships are, therefore, clearly of opinion that it was at the date sepecified not registrable by
the appellants as their trade mark.
11. In this case the user by other was extended over a very long time and the Court came to the conclusion that the word ""Maizena "" in New
South Wales was the common name of an article and not a name distinctive of the manufacture of the appellants in that case:
In all cases of trade mark, no doubt the Court has to judge on the facts before it, and the decision in another case, based on the facts of that case,
can be of little value in arriving at a conclusion on the facts of the particular case before the Court. But the principles laid down as to the
appreciation of the facts are of the same importance and of the same value in all those cases, and applying the principles as laid down in Ford v.
Foster [1872] L.R. 7 Ch. 611 to the facts of the case, and considering that the onus of proving that the trade mark Sanatogon, in which the
plaintiffs had admittedly acquired a reputation up to the outbreak of war in 1914, had ceased to be distinctive of the plaintiffs'' manufacture and had
become publici juris, is on the defendants, I cannot hold on the evidence before me that the defendants have proved to the satisfaction of the Court
that the name Sanatogen has come to be so public and in such universal use that nobody can be deceived by the use of it and can be induced from
the use of it to believe that he is buying the goods of the plaintiffs. To my mind the evidence, as it is shows that notwithstanding the sales of
Sanatogen which, on the face of the packets, was shown to have been manufactured not in Germany but in England and America either by the
plaintiffs or by the Genatosan Limited, the public bought it merely as a substitute for the genuine article even where they knew that it was not
German stuff they were buying, and that in the mind of the public the word ""Sanatogen"" did not indicate the name of a compound which might be
manufactured by any manufacturer but indicated the distinctive manufacture of the plaintiffs.
12. On the evidence there is no doubt, in my mind, that the defendants, seeing that a very largo and lucrative business was carried on by the
plaintiffs in Sanatogen, and that there was no other competitor in the field, and finding that in England various other manufacturers did manufacture
and sell the compound in that name, sought to take advantage of the reputation acquired by the plaintiffs and they got it manufactured in England
for sale in India. The whole conduct of the defendants, as disclosed in the evidence, shows the dishonesty of their intention.
13. Mr. Binning, for the plaintiffs, did not press the point of get up as, in his opinion, the use of the words ""Sanatogen "" and ""Formamint"" was the
most important factor in the case, and what the plaintiff''s are seeking in this suit is to prevent the use of those names and therefore the question of
the get-up, although taken in their plaint, has not been pressed before the Court at the hearing. To my mind however the question of the get-up is
important from this point of view that whatever be the belief of the defendants as to the name Sanatogen being a common name and not distinctive
of the plaintiffs'' manufacture, the defendants did, by the get-up of their stuff, try to sell their stuff as the stuff of the plaintiffs. The differences are
childish. The name Sanatogen is printed on the packets and on the bottle of the plaintiffs in a different style. The defendants have merely changed
the position of these names. The style of the words used on the packets of the plaintiffs is the style of the words on the bottle of the defendants,
and the style of the words used on the plaintiff''s bottle is the style of the words on the packet of the defendants. No doubt, the name of the
supposed manufacturer in England, which the defendant had to admit in his evidence, was an imaginary name, is printed on the bottle and packet,
but, as observed in so many cases, the public are not, therefore, less likely to be deceived in buying the defendants'' goods as the goods of the
plaintiffs.
14. Even if the word ""Sanatogen"" had ceased to be distinctive, there is no doubt in my mind that the way the defendants have tried to sell the
goods is indicative of their intention to pass off their goods as the goods of the plaintiffs and, in any event, the plaintiffs would be entitled to an
injunction restraining the defendants from passing-off the goods as the goods of the plaintiffs.
15. Assuming that the defendants are right in their contention that the names have ceased to be distinctive of plaintiffs'' manufacture by reason of
the sales of the compounds manufactured by other manufacturers under those names between 1917 and 1923, the next question arises, namely,
whether under the Peace Treaty the fact of the user of the names by others should be eliminated from consideration and the case considered as if
the right of the plaintiffs, as it was at the outbreak of the War, was restored to them on the conclusion of the Peace Treaty. This question has been
the main question argued before me by counsel on both sides. I have given a very careful consideration to this point, more particularly as there are
no reported cases thereon. The point has arisen in South Africa before and been decided by the Registrar of Trade Marks whore rights to trade
marks are protected by registration under law similar to Registration Acts in England, Mr. Binning has used that judgment as part of his argument
on my invitation to him to do so, and I must say that I have derived some assistance from it.
16. Coming to the relevant articles of the Peace Treaty of Versailles, Article 306 provides as follows:
Subject to the stipulations of the present treaty, rights of industrial, literary and artistic property, as such property is defined by the International
Conventions of Paris and Berne mentioned in Article 286, shall be re-established or restored, as from the coming into force of the present treaty, in
the territories of the High Contracting Parties, in favour of the persons entitled to the benefit of them at the moment when the state of war
commenced or their legal representatives....,
17. Then there is a proviso that:
Nevertheless, all acts done by virtue of the special measures taken during the war under legislative, executive or administrative authority of any
allied or Associated Powers in regard to the rights of German nationals m industrial, literary or artistic property shall remain in force and shall
continue to maintain their full effect.
18. Under Article 307 it is provided as follows:
A minimum of one year after the coining into force oC the present Treaty shall be accorded to the nationals of the High Contracting parties, without
extension fees or other penalty, in order to enable such persons to accomplish any act, fulfil any formality, pay any fees, and generally satisfy any
obligation prescribed by the laws or regulations of the respective States relating to the obtaining, preserving, or opposing rights to, or in respect of,
industrial property either acquired before August 1, 1914, or which, except for the War, might have been acquired since that date as a result of an
application made before the war or during its continuance.
All rights in, or in respect of, such property which may have lapsed by reason of any failure to accomplish any act, fulfil any formality, or make any
payment, shall revive.
The period from August 1, 1914, until the coming into force of the present Treaty shall be excluded in considering the time within which a patent
should be worked or a trade mark or design used and it is further agreed that no patent, registered trade mark or design in force on August 1,
1914, shall be subject to revocation or cancellation by reason only of the failure to work such patent or use such trade mark or design for two
years after the coming into force of the present Treaty.
19. Article 309 provides:
No action shall be brought and no claim made by persons residing or carrying on business within the territories of Germany on the one part and of
the Allied or Associated Powers on the other or persons who are nationals of such Powers respectively, or by any one deriving title during the war
from such persons, by reason of any action which has taken place within the territory of the other party between the date of the declaration of war
and. that of the coming into force of the resent Treaty, which might constitute an infringement of the rights of industrial property or rights of literary
and artistic property, either existing at any time during the war or revived under the provisions of Articles 307 and 308.
20. These articles of the Peace Treaty, no doubt, purport to re-establish and restore, as from coming into force of the Treaty, the rights of
industrial property as such property is defined by the International Conventions of Paris and Berne.
21. Article 286 provides that the International Convention of Paris of March 20, 1883, for the protection of industrial property, revised at
Washington on June 2, 1911, will again come into effect as from the corning into force of the present Treaty in so far as they are not affected or
modified by the exceptions and restrictions resulting therefrom.
22. ""Industrial property "" is defined in the International Convention of Paris, as revised at Washington, in the final Protocol to Article 1 of the
Convention, as follows:
The words ""industrial property"" are to be taken in their broadest sense; they extend to all productions of the agricultural industries (wines, corn,
fruits, cattle, etc.) and of the mining industries (minerals, mineral waters, etc.).
23. Article 2 of the Convention provides as follows:
The subjects or citizens of each of the contracting countries shall in all the other countries of the Union, as regards patents, utility models, industrial
designs or models trade-marks, and trade names, indications of origin, and the suppression of unfair competition, enjoy the advantages that their
respective laws now grant, or may hereafter grant, to their own subjects or citizens. Consequently, they shall have the same protection as the latter,
and the same legal remedy against any infringement of their rights, provided they observe the conditions and formalities imposed on native subjects
or citizens. No obligation as to the possession of a domicile or establishment in the country where protection is claimed shall be imposed on those
who enjoy the benefits of the Union.
24. Article 6 provides specifically for trademarks:
Every trade mark duly registered in the country of origin shall be admitted for registration and protected in the form originally registered in the other
countries of the Union.
25. Articles 7 and 8 further provide for registration of the trade-marks. Article 8 provides:
A trade name shall be protected in all the countries of the Union without necessity of registration, whether it forms part or not of a trade-mark.
26. Article 10 bis provides as follows:
All the contracting countries undertake to assure to those who enjoy the benefit of the Union effective protection against unfair trade competition.
27. The explanation to Article 1 as given by the Protocol and Article 2 indicate that industrial rights, in their broadest sense, are sought to be
protected by the Convention. The articles, however which deal in detail with the protection of these rights, show that, so far as trademarks are
concerned, only rights acquired by registration are considered, and in the case of trade names, it is specifically provided that registration shall not
be necessary for the protection of trade names. The question then arises as to whether by reason of the specific provision for protection of
registered trademarks, the definition as given in the explanation to Article 1 and the rights which are sought to be protected by Article 2 can be
construed as circumscribed by the said specific provision. At one time I thought that that would be a. reasonable construction. Probably, the
registration of trade-marks being in force in most of the civilized countries, the signatories of the Convention did not contemplate or provide for
rights in trademarks which are not acquired by registration. But, on a full consideration, I am inclined to the opinion that the object of the
signatories being the protection of industrial rights in trade-marks as are recognized by a country, the Court by putting a restrictive meaning on the
provisions of the article, would be frustrating the very object with which the Convention was made, and, in a country like India, would deny to a
foreigner the right to acquire in India rights in respect of trade-mark by user which a citizen of the British Empire could acquire therein. It would
mean that where the law of registration of trade-marks does not prevail, a foreign national cannot acquire the rights in trade marks as the national
of that country can acquire. It may be that where the law of registration prevails every one would be cognizant of the rights of property in the
trade-marks, which are registered. But the fact that a common law right to a trade-mark may not be so well known, unless and until it is contested
in a Court of law, ought not, to my mind, to preclude a foreign national from acquiring and maintaining such a right in a country which is a party to
the said Convention, just as a national of that country would be entitled to do. Moreover, the right to a trade mark is, to my mind, not affected by
the method by which it is acquired. The right of industrial property consists in the right to the user of a particular trade mark. In India there being no
Registration Acts, the right to a trade mark can be acquired only by user. There is no doubt in my mind that the right so acquired in India is a right
to industrial property, and it is for that reason that I have cited the observations of Kerly in the beginning of my judgment as to the nature of the
right acquired in England before the passing of the Registration Acts. The right to a trade mark, in whatever way acquired in a British country, is a
right of industrial property coming under the Conventions of Paris and Berne. If that is so, the rights which the plaintiffs admittedly had to these
trade-marks, at the out-break of the War, must be restored to them under the Peace Treaty, unless there is an Act of Government which deprives
them of the right. In England there has been such an Act of Government, In India no such action has been taken by Government. So the only thing
in the way of the plaintiffs, in the exercise of their rights of trade-marks, is the sale of Sanatogen and Formamint, manufactured by others and sold
under those names in infringement of the right of the plaintiffs from the year 1917 to 1923, during the time when the plaintiffs, by reason of the War,
could not possibly prevent such infringement. The Peace Treaty expressly provides that any such infringement during the War shall not be taken
into consideration and the parties shall be restored to their original position as it existed at the outbreak of the War.
28. At one time I was very much oppressed by the argument that the common Jaw right to a trade-mark is originally based on the deception of the
public and that, if in fact, the public are not deceived, the owner of the mark should not be entitled to a restoration of a right where the very basis
of the right is gone. In the case of registration the right is acquired independently of any reputation of the article by the mere fact of the registration
of the trade-mark. Such a right, if infringed during the War, may very well be restored by the action of the Government who are parties to the
Peace Treaty, but in the case of a common law right, where the article has come to be publici juris, by reason of its sale by other manufacturers,
how could the original position be restored? But, on a careful consideration of the Peace Treaty and of the Convention of Paris as revised at
Washington, the object of the Peace Treaty appears to me to be clear, namely, to restore the traders to the same position as they occupied at the
out-break of the War in respect of the rights acquired by them. On further consideration, I think, the same argument can be advanced in respect of
the restoration of a right to a registered trade-mark. For instance, a trade-mark cannot be registered unless the word is a fancy word. If all
manufacturers use it, it remains no longer a fancy word. But by the Peace Treaty the owner of the trade-mark is restored to his rights, that is to
say, the word is to be considered to be a fancy word in spite of the infringement which makes it a common name. To my mind it appears that I
would not be giving full effect to the clauses of the Peace Treaty if I construed the definition of ""industrial property"" in the narrow sense in which I
am asked to do by the defendants in this case.
29. I hold that the plaintiffs are entitled to the rights in the said trade marks as possessed by them at the out-break of the War, and that sale by the
defendants of their compounds, under the names Sanatogen and Formamint, is an infringement of the plaintiffs'' said rights.
30. I have already pointed out how the get-up of the defendants'' Sanatogen and Formamint is very similar to the get-up of the plaintiffs''
Sanatogen and Pormamint and how it is likely to deceive the public into buying the defendants'' goods as the plaintiff''s goods. In any event, I am of
opinion, that the defendants cannot be allowed to sell their goods under that get-up and that they should be restrained by an injunction from doing
so. The mere publication of the name of Gibbon Sons and Co., as manufacturers, on the defendants'' goods is not sufficient to distinguish them
from the plaintiffs'' goods. Even if the defendants are entitled to use the words ""Sanatogen"" and ""Formamint"" on the goods sold by them, they must
change the get-up of the goods in a manner as not to deceive the public into believing that they are the goods of the plaintiffs.
31. Decree for the plaintiffs in terms of prayers A and B of the plaint.
32. The defendants to submit accounts of importation and sale of goods, as per prayer C, to the plaintiffs solicitors on or before January 31, 1925.
33. Plaintiff''s to be at liberty to make an application to refer accounts to the commissioner.
34. Defendants to pay the costs of the plaintiffs.
