TMI Blog1938 (9) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... colourable imitation of the plaintiffs' company's name. In paragraph 5 plaintiffs allege that the defendants must have known of the plaintiffs' company's existence and designation and that the action of the defendants in choosing and coining for themselves a name substantially similar to that of the plaintiffs is deliberate and is not bona fide. In paragraph 7 they allege that the defendants' name is calculated to deceive the public and that considerable confusion is likely to be caused by similarity of the names. I observed that in the plaint-title the plaintiffs have wrongly described the defendants as an Assurance Co., whereas the correct description is Insurance Co., and I directed the plaint to be amended accordingly so as correctly to describe the defendant Company. The defendants in their written statement, paragraph 13, pleaded that, by reason of the plaintiffs' Company being incorporated in Mysore State and not under the Companies Act, it had no right of suit, but that defence has not been put forward before me; on the other hand, the right of plaintiffs to sue is conceded. In paragraph 5 they state that they were not aware of the existence of the plaintiff Company ei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the case the conduct of the defendants' company. I must now turn to what is really the crux of the matter viz., whether the similarity in the names of the two companies taken with the evidence satisfies me that the defendants' company's name is calculated to deceive the public and to divert business from the plaintiffs to the defendants or to cause confusion between the two companies. A comparison of the two names is therefore important. The plaintiffs name is The Asiatic Government Security Life Assurance Co., Ltd., the Defendants' is The New Asiatic Life Insurance Co., Ltd. I attach no importance to the difference between 'Assurance' and 'insurance' for I very much doubt if the average man could be sure whether companies of this sort with which he was familiar described themselves as 'insurance' or 'assurance', although he might know the rest of the names well enough. The plaintiffs' company's name has the words 'Government Security'. Those words are not present in the defendants' name. Before the word 'Asiatic' there is the word 'New' in the defendants' name. It is known that the plaintiffs' company must have the words "Registered in Mysore" attached to its description, bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat of the other that it is likely to be mistaken for it." Mr. Grant relies very strongly on this case. I would respectfully say that it seems to me clear that the name of the defendant company in that case must have misled and confused persons with regard to the plaintiff company. But, apart from that, there was, I observe, a great deal of affirmative evidence on the point. There is none before me. A further circumstance is that at its inception, there was included in the defendants' advertisements a statement that its temporary offices were at Mansion House buildings, only about 300 yards from plaintiff company's premises. The Guardian Fire and Life Assurance Co. v. Guardian and General Insurance Co., Ltd., is a decision of Jessel M.R. The plaintiff company was incorporated in 1921 and carried on its business at 31, Lombard Street, and the defendant company carried on business at 31, Lombard Street, and it had been formed to takeover the goodwill of the Guardian Horse and Vehicle Insurance Association Ltd., which was registered under the description of the Guardian and General Insurance Co., Ltd. There was evidence in that case about the misdirection of letters and the le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the line, but well over the line." There was apparently a great deal of affirmative evidence in that case. Mr. Grant relies on it very strongly because the plaintiff company was a north British concern, the nearest branch to the south being at West Hartlepool, whereas the defendant company had its office in Westminster. In that case, of course, the decision turned on the use of the word 'Buttercup' by the defendant. As Bankes, L.J., said at page 12, "the distinctive feature" of the plaintiff's "trade name is ' Buttercup'" The learned Judges have no hesitation whatever in holding that there was a probability of deception and confusion. Bankes, L.J., points out, on page 12, that it was not material that the business of the plaintiff was mainly confined to Scotland and parts of the North of England. I would respectfully say that that ease seems to me to be a very clear example of one company using the distinctive name attached to the goods sold by an earlier established company and that, the goods being identical, confusion would be inevitable. The National Bank of India v. The National Bank of Indore is a decision of Mulla, J. He emphasizes that it is not necessary for the plai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Oriental Assurance Company", and I would respectfully agree with FLETCHER, J., in holding that the "Oriental Assurance Co." would almost inevitably be confused with another beginning with the word 'Oriental' and ending with 'Insurance Co.' But if this is a decision that the use of the word 'Oriental' at all is prohibited, I would record my respectful doubt as to that part and that part only. The above cases are relied on by Mr. Grant. Mr. Rajah Iyer has also referred to certain authorities. Society of Motor Manufacturers and Traders v. Motor Manufacturers' etc., Insurance Co., is a decision of Lawrence, J., as he then was I do not think that case assists me. As observed by Lawrance, J. at page 685: "It is important to bear in mind first, that this is not a case of fraud secondly, that the business of the defendant company is altogether different from and in no way competes with the business of the plaintiff society; and, thirdly, that the name of the plaintiff society is descriptive and consists entirely of words in ordinary use in the English language." He considers that the addition in the defendant's name of "Mutual Insurance Co." and the absence of the words "Societ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts as I find them they would possibly be entitled." The learned Judge had previously found that the plaintiffs' stone and the defendants' stone were the same and that the defendants were entitled to sell their stone under that name, bat it will be seen at page 625; he observes, that confusion would probably arise if the defendants carried on business or formed a company under or with the title of which the word "Hopton" is the first word. And it will be seen that the learned Judge took the view that by prefixing the word 'New' all difficulties would be avoided. This is of great interest, because both the learned Counsel in this case have been unable to refer me to any case like the case I have to decide a case where a company with an established name sued another company with the same or a similar name but with the word 'New' added at the beginning of the latter's name. It is appropriate at this stage to say and these matters must be surely matters of impression that the word 'New' to my mind, differentiated the defendant company from the plaintiff company even without the other difference which is in the title; and it is interesting in deciding matters of this sort which, ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... him in interfering on an interlocutory application, but the learned Judge concludes his judgment by suggesting that the defendants would do well to change their name as soon as possible. Meikle v. Williamson was cited, because in that case a misdirection of letters alone was held not sufficient and does not alone tend to prove that a customer who intends to deal with the one firm, is likely to mistake the other for that firm. In this case, it is important, as I have already said, that there is no evidence that anybody was misled. So much for some of the cases which have been cited. As I said at an early stage it seems to me that, as the case law is so well established, the decision must rest on the facts. Putting the names side by side and comparing them I can only say that it does not seem to me that the defendant company's name was likely to mislead the public, that the word 'New' at the beginning was a decisive difference and, added to that there are the following circumstances, all of which should be taken into account. The plaintiff company has the words 'Government Security' which the defendant company has not. The plaintiff Company is a Mysore Company and must have th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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