M. S. HEBTULABHOY & COMPANY LTD STASSEN EXPORTS LTD & ANOTHER

013-SLLR-SLLR-1989-V-1-M.-S.-HEBTULABHOY-COMPANY-LTD-STASSEN-EXPORTS-LTD-ANOTHER.pdf


182
Sri Lanka Law Reports ■
U989j 1 SriL.R.
M. S. HEBTULABHOY & COMPANY LTD
V.
STASSEN EXPORTS LTD & ANOTHER
COURT. OF APPEAL
P. R. P..PERERA, J.. K. PALAKIDNAR. J.. & S. N. SILVA. J. ..
A. NO: 86,8/87 WITH C. A. NO:" 209/87(F)
C. COLOMBO NO. 2316/SPL
NOVEMBER 14; 15, 16. 17. 18. 19.21.22.23.24 and '
DECEMBER 12. 1988.
'lntellectualPrope^ty Law Trade-Mark — Registration of Roman letter-mark Rabea"•with prohibition of use of translation — Use by respondent of mark Chat el Rabea'in Arabic -infringement — Code of Intellectual Property Act No: 52 of 1979 S. 117—Interpretation — "Likely to mislead the public "'-L Meaning of public.
CAM. S. Hebtulabhoy & Company Ltd. v. Stassen Exports Ltd. & .
Another (Ralakidnar.’J.)…183
the Appellant (Hebtulabhoy & Co)were o.w.ners of the registered trade- mark"Rabea" (valid from 06.10.1969 till 06.10.1993) which they used in Romanletters for exporting tea to foreign buyers, the word ‘Rabea" in Arabic means theseason 'spring'. The registration. prohibited the use .of the mark Rabea intranslation. The Respondents Company (Stassen Exports Ltd!) use the words"Chai el Rabea" inrArabic on their labels ip exporjing tea to Egypt.
The Appellant sued the Respondent for. a permanent .injunction, and obtainedan interim injunction. The District Judge refused the injunction and awardedRs. 8 million as compensation.
Held
Section 117(2) (a) precludes any use of the mark or of a sign resembling itin such .a way as to be likely to mislead the public for goods or services ihrespect of which the mark is registered or .for other goods or'Services inconnection with which the use of the mark or sign is likely to mislead the publicby a third party without the consent of the registered owner, v
: in deciding whether ■■Rabea". in’Roman characters and "Chai el Rabea" inArabic are deceptively similar the Court must look at the question from abusiness and'commonsense point of view. .There was phonetic similarity in thetwo expressions'even • if there is no visual resemblance. The resemblance■between the two marks has to be considered with reference to the ear as well asto the eye. The selection of the name Chai el Rabea by the Respondents lentitself to supicion of fraudulent motive to trade'upon the Appellant'S'reputation.The respondent, at tfie request of his buyer, affixed the. Labels.in Colombo.priorto export and committed infringement of the Appellant's rights'as a registeredo.wner of the trade mark.
(3)1 In. considering the phraSe "likely to mislead the public";it would be.improper to co'risidenthe destination of the goods — .here,Saudi Arabia . It is not
£;in accord or harmony with the concept of Trademark Law to take a restrictiveview of the public and contain thpm in geographically defined areas or politicaldivisions or, countries. The’consumer public Of a future prospective class is alsoprotected by the pol.icy of the law against infrigement. .The public is very properlythe public present, prospective, (ocaTand foreign.•• •' ■■
Cases referred tb
' 1. Bank of England v. Vagliand Brothers'— [ 189 i ] H.3 * 5L p. 1,08.
'u''2.' Budget Cooper v^Adams ^- (489‘#2 L. R. Ch. D, p.:562.
Spalding v. Garbage -r (1915) 32.R. P. C. 286. (1.915) i31 T. L. R.
. 328. 84 bJ,Ch. 449; 1.13 L T:198, -■
184
Sri Lanka Law Reports
(198911 Sri L. R.
Subyv. Suby — [1980] 2 Sri L.R. 65. ■.
Electrolux Ltd v. Electrix Ltd — (1954) 71 R.P.C. 23.
Dewhurst's Application — 13 R. P C. 238.
La Societe Anonyme Des Verrierrs Del Etoile — 11 R.P.C. 142.
.Freia Chocolade Fabriks — 41 R.P.C. 653. •
Electrix v. Electrolux — [ 1959] — 3 All E.R. 170.
cBerlei U.K. Ltd. v. Bali. Brassiere .Co. Incorporated — [1962] 2 All
R. 812.
Erven Warnick Besloten Veroots Chap and another v. Townsend andson -[1979] -A.C. 731,
Chinne Krishna Chettiaj v. Sri AmbalCo.— AIR 1.970 Mad. 146.
Balaji Chettiar v. Hindustan Lever Ltd. Bombay — AIR 1967 Madras148.
John Go'svel v. Sivaprakasam — 15 NLR 33.
Lipton Ltd. v. Rawther — 35 NLR 129.
Veeragathipillai.v. Saibo — 36 NLR 317.
' Lever Brothers v. R. M. Ranganathan Pillai — 37 NLR 332.
Rubber Corporation v. Universal Rubber Products-Philllipines — S.C.1987 -G.R.N. 27976.
Standard Oil Co. of Ate w Mexico v. Standard Oil Co. of California — 5 6Fed. Rep. 2nd Ed 973.
. Draper v. Trist and another— [1939] 3 All E.R. 513: 56 RPC 429.
Hecker H. 6. Co. Inc. v. Holland. Food Corporation — 36 Fed. Rep.-767.
Arthur Guiness Son and Company v. Oscar Von Bermuta Incorporated
14 Fed. Supp. 210.-
Brookes Brothers v. Brookes Clothing of California — 60 Fed — Supp.
■ -442. ■'…
Tisch Hotels Incorporated v: Americana Inn Incorporated — 350 Fed.Rep. 2nd Series 609.
CA
M. S. Hebtulabhoy & Company Ltd. v. Stassen Exports Ltd. &
Another (Palakidnar. J.)185
APPLICATION for -revision of and APPEAL against judgment of the DistrictJudge of Colombo.,. ■
Dr. H. W. Jayewardene Q.C., with G. F Sethukavalar. P.C..L. C. Seneviratne. P.C..
K.. Kanag-lswaran.. P.C.. L. Kadirgamar. K. M. .Fasher Ahmed. Illiyas. and
N. Sivendran for the Petitioner-Appellant.
H. L. de .Silva. PC. with Nihai Fernando and LDefendant-Respondent.
January 1 2. 1 989.
PALAKIDNAR. J-
M. S. Hebtulabhoy and •Cofnpahy' the petitioner-appellantCompany are for many years exporting tea to foreign buyers.They have registered a trade mark "Rabea"iin-use and valid from
969 till 06.10.1993. the Certificate of Registration bearsthe number 31953. It. is stated in that certificate' '(pt) that' atranslation of the. word ‘Rabea’ cannot be' used. The word"Rabea" in Arabic..means spring —^^one of the four seasons; Thusthe word spr'ing!pr its equivalent in any other language will nothave the protection as a’Tfade Mark. It’is to be' noted' that thevisuaTmark "Rabea" is in Roman letter's.
. In September. 1981 the Petitioner-appellant became'aware,that the 1st Defendant-Respondent-Company , (referred' hithertoas; Respondent) was doing acts which he complained were in■.violation of rights of ownership, of the Trade Mark' "Rabea". The^Respondent was exporting tea with the label "Chai el Rabea" to.Egypt. When the attention.of the Respondent was dravyn to thismatter by the'Appellant the Respondent gave an undertaking that• he Would desist from doing* so and' would, not indulge' in unfairtrade practice.; •'
However in July. 1983 the Appellant ..becarne aware that -Respondent was exporting tea to Egypt in .packages bearing thename "Chai el Rabea" in Arabic..
The Petitioner moved the District Court. Colombo and obtained
an.interim injunction restraining the Defendant from shipping-a.cons.ignment.of tea bearing the labels Chai.el Rabea. -.
. • TV. A. de Silva for 1 stCur. adv. vuti.
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The Respondent sought to have this ex-parte order suspendedbut the Court refused the application. The Court of Appealsuspended the operation of the injunction in respect of thatshipment only by order dated 27.09.1983 but upheld the orderrefusing to suspend the injunction.
The Supreme Court issued a stay order of the Court of Appealorder of 27.09.1983. but the shipment we are informed .left thecountry with the labels having availed of the order of the AppealCourt of 27.09.1983. the Supreme Court further directed thatthe petitioner's application for a permanent injunction restrainingthe use of the Defendant-Respondents label be heard andconcluded by order dated 28.05.1984.
The learned trial Judge went to trial on twenty two issues. Hehas found that the appellant cannot maintain this action for an-injunction and awarded compensation to. the respondent in asum of eight million rupees. The appellant has averred.in hisplaintrthat' the Respondent is acting .-in a mannar calculated tomislead purchasers and others into the belief that tea that isoffered for sale- exported and/or sold .by-the defendants'is the' tea of the plaintiffs firm known as "Rabea"
– At the argument in appeal learned Queen's Counsel for the-appellant cited .numerous authorities to show that ,the learnedtrial-Judge had-answered the issues relating to the infringementof the Trade-Mark rights of the appellant erroneously by holdingthat there was. no violation of-the rights.-
Learned -President's Counsel for the respondents objectedstrenuously to the reference to this aspect-relating to the state of•l.aw as being prior to the Code of Intellectual Property Act No. 52of 1979..
He relied, on the views expressed by Lord Halsbury in the Bankof England vs. Vagliano Brothers case (1) in regard,to codifiedstatutes. He said that "construing the statute by adding to itwords which are-neither found therein nor for which authoritycould be found, in the language of the statute itself is to sinagainst one of-the most familiar rules of construction." He furthersaid that he was wholly unable to adopt the view that where a
CA
M. S. Hebtulabhoy & Company Ltd. v. Stassen Expons Ltd. &
Another (Palakidnar. J.)187
statute is expressly said to codify the law you are' at liberty to gooutside the code so created because before the existence, of thatcode another law prevailed.
Lord Herschell too supported.this view and stated that appeal• to earlier decisions can be justified only on some special ground,
In Budget Cooper vs. Adams (2) Chitty. J. said that in aconsolidating and amending Act but not in an act that codifiesthe existing law, it would be legitimate to refer to the previousstate of the law for the purpose of. ascertaining the intention, of -.the. legislature.-
We would agree with counsel for the appejlant that the word"code" in Act No. 52 of 7'9 is a mere cliche,.but in re'ality it isan amending and consolidating act embodied in the form, of acode as set out in the long title, to the'act: Thus the stringentviews referred to earlier cannot be held to govern the approachto the proper examination of the Rights "of the.Registered: ownerof a.trade mark as laid down in Section 1 17 of the Act.
The relevant. Section of the Act-would be Section-' T17Subsection (2) (a) which precludes any use of the mark, or of asign resembling it in such'a way as to be likely to mislead- thepublic for goods-or services in respect of which the mark is •registered or for other goods or services in connection withwhich the use of the mark or sign is likely To mislead the publicby a third party without the consent of the Registered owner.
We were invited to place a stringent construction on the words '
. "use of a mark or of a sign resembling it" thereby precluding therecourse to- the manner in which deceptive similarity byresemblance has,been viewed, interpreted and evaluated.ip all .legal-systems where the proprietary.right- in a trade mark has'been recognised.On a review of.all the/eleya.nt authorities citedbn this matter it would be a.cardinal sin if one were to turn ablind eye; to' the. development of the law on this subject andmerely examine the" conflicting mark- in the light of visualsimilarity alone as the argument see'ms to imply. The negative
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answers to issues 5(a) and 5(b) without any analysis of thereasons given thereto seem to reveal that the trial Judge hasfallen into the grievous error of looking at this problem on thebasis of visual similarity alone, although we find it difficult toreconcile his finding of fact expressed in the judgment that therecould be confusion of goods if exported to the same market.Such a confusion, which he conceded, can only arise from ananalysis of the Registered mark and the mark used by theRespondent. The learned trial Judge held that the Respondent'smark "Chai el Rabea" is a transliteration of the Registered mark' Rabea in Arabic characters. The translation .would be "spring".The law does not protect any use of "spring" by the appellant.
In deciding whether "RABEA" in Roman characters and "Chaiel Rabea" in Arabic, are deceptively similar the decision is amatter for the Judge who looking at documents and evidencebefore him comes to his own conclusion. This rule wasexpressed by Lord Parker in Spalding vs. Gamage (3). JusticeRodrigo in Suby vs. Suby (4) agreeing with this view states thatthe'Court in exercising its own mind has to look at it from a' business and common sense point of view.
. .Examined in this manner. Rabea the mark of the appellant andRabea the mark of the respondent are indentical phoneticallyspeaking. There ■ was • no evidence that these words are.prohounced- in; different ways. The phonetic similarity seems tobe the. basis-of the trial Judge's conclusion that there would beconfusion. Both from a business and common sense point ofvi'ew n.o other conclusion is possible. ', I
I would at this stage refer to the 'case., of Electrolux Ltd. vs.Electrix Ltd. (5) "Electrix" was the mark registered-for vaccumcleaners.-Though no-iqstance 6f confusion with the mark Electrix' was.proved, their similarity made the latter mark an infringement. of the former mark'. The question whether there is confusingsimilarity is primarily one.for the Judges: Lord Evershed said thatthe,Judge, must make up his mind and. not abdicate the decisionin that matter to witnesses before him. '
CA. M. S. Hebtulabhoy S Company Ltd. v. Stassen exports Ltd. &
Another (Palakidnar: J.)189•
In the Dewhursts. application (6) for a Trade Mark Lindley L. ,J.held* • that registration of. letters "Golden Fan" in 'Burmese• characters while there was already registered a mark "GoldenFan" in English was an obvious deception. "You cannot haveanother mark Golden Fan’ in any language or any hieroglyphics."
The same learned Judge in the case of the Trade; Mark of LaSociete Anonyme- Des Verrierrs Del Etoile (7) in consideringwhether the words "Red Star Brand’' was ari infringement of adevice of a star, on window glass has held -the latter‘as beingcalculated to deceive by appealing to the eye or the oar.
Law,ranee. J in Freia Chocolade Fabriks (8). considered whether"Freia" would infringe on’ the Trade Mark "Fry" used onchocolates and held that the words would sound the same to theordinary purchaser. The crux of the .matter is .the confusion to theear of the.ordinary purchaser…ViscountiSirrimonds with LindleyM. R: agreeing in Electrix vs. Electrolux (9) held that: if a wordcould-, not. be ■ registered for any . reason then its. phonetic:equivalent would also be unregistrable.- / • * • •
"Berlei" ahd "Baji" were considered -in: "Bprlei U<-K. Ltd. vs. BaliBrassiere, Co. Incorporated (TO). Bali , was.,^held to ..resemble;sufficiently to c.a.use oral confusion possible. The.attempted useof the trade mark would have been Calculated to deceive. LordGuest with whom Ungoed Thomas. J. and Diplock, J. agreed saidthat-the visual similarity is inegligible. The likelihood of substantialconfusion arising from.the pronounciation of words seems to beobvious. 0n this phonetic aspect it was held that there was greatpossibility, of confusion. In the Erven Warnick Besloten VerootsChap,and another-vs. Townsend and son case (I1j:
j. The -plaintiff produced and sold a distinct and recognisable,species of beverage called "Avdocaat." The defendant sought tosell a beverage called Keelings Old English Advocaa.t.,
Lord Diplock-said that the.facts seem to disclose, a case ,ofunfair pot to say :dishonest .trading of a kind for which a rationalsystem, of Jaw ought to. provide a remedy, to othefetra.ders whosebusiness or goodwill, is injured by it.. –
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(198911 Sri L. R.
In the Madras case of Chinne Krishna Chettiar vs. Sri AmbalCo. (1 2) the plaintiff sold snuff with the registered name "Ambal."The defendant seeking to register "Andal" was not permitted todo so. having regard to the striking similarity and phoneticresemblance of the two names. Baghawat. J. held that even ifthere is no visual resemblance that does not matter where thereis.clOse affinity of sound.
Jagadi'shan. J. said in the Madras High Court, nobody canabstract the name or use a phonetical equivalent and escape thecharge of piracy pleading that the visual aspect is different fromthe mark of the opponent. The resemblance between the twomarks has tobe' considered with reference to the ear as well asto the eye. ' *'
’ .• .v
Ramamurti. J. in Balaji Chettiar vs. Hindustan Lever Ltd.Bombay (.13).dealing with.the plaintiffs registered name Sunlightand the mark Surian with representation of Sun in Tamil used onsoap-held that confusion:woul;d: be caused. A; lack of knowledgeof Englishman make the confusion-even more unavoidable andimminent. Middleton, J. in John Gosvel vs. Sivaprakasam (14)held that-"Farina"'soap-wasvari infringement on "Famora" soap.Quoting Ke'rly (Trade Mark) he 'said that it js'not sufficient toshow''that a'p'efso’n who’carefully examined and studied might• nofbe misled.
Dalfon.jA. C. J.' ih Lipton Ltd.'vs.' Rawther (-1*5) interpreting’thewords "calculated to.deceive" usedan Section 19 of the'TradeMarks Ordinance saidi'that a'Gustomer can'only contrast the markon'the goods-offered to'Him with his recollection of the'mark asseen and remertibered-: in the- article rand hot'-necessarily in theform as they appear in the register. Considering the names "Manof‘the War Enterprise Brand Tea" and "Steamship1' brand tea itwas'Held that de'vice Of'"ship" was a prominent feature in bothmarks and that 'eonfusiori'wilil result and deception would follow.
n~'VeeragathipiliaH'vs:’-Saibo (1*6) Akbar. J.'considering thechoice of’monkey similar to a maH1"phalwa'n"'.mafk for’fI'our saidthat the'figure 0T a standmgrmonkey Was chosen from ah infinitenumber of designs to select. ’-It1 was a 'Choice calculated' todeceive.
CA
■ M. S. Hebtulabhoy S Company Ltd. v. Stassen Exports Ltd. &
Another fPalakidnar. J.J
:
■■ Martinsz. J. in Lever Brothers vs. R. M; Ranganatha Pillai (17.)said'that the name Rex on soap was calculated to deceive inrelation to. the plaintiff's, soap bearing. Trade Mark Lux.'Considering further the size and Sha'pe of the commodity it washeld that, there was possibility of deception.
In the light of the views expressed"by Judicial authority in bothlocal and foreign cases considered above, .one has to considerthe comments in Callman's treatise on .Unfair-Competition 4;thEdition Vol. 3 on motives for the selection of Trade Marks." "Aboundless choice of words,, phrases and symbols is,.available toone ;who wishes tp mark to distinguish his product, or service .from others. When a defendant selects from this practicallyunlimited: field- a trade mark confusingjy similar to the-markpublicly associated with the plaintiffs, product, then if wouldappear that the defendant made the particular choice in order totrade upon the plaintiffs established reputation. If there is noreasonable explanation, for the defendants choice of such a, markthough the field of his selection was so broad. the inference,is 'inevitable that it was,chosen dejiberately to deceive." .
The evidence.shows that the Respondent has ng explanation to .offer for the. choice of "Ch’ai El Rabea" ,as, his trade mark,. He.’hasSfated that,his. buyer Epahy from Egypt wanted this mark-put and •■'he.di.d so. The evidence'further discloses.that this mark' was puton labels, and fixed to. bpxes, and cpyered by-gunny .bags' ahdpacked for. shiprtient. The mark .is produced in 1D26. It .waspointed out, from the,documents .produced that the invoices'donot shpw Chai EI^Rabea butfwords "yellow Spring",, It was also. established beyond doubt that the la.b'els Were pasted’ inColombo. This fact Was in fact,found, to be .so by the learned trial ..Judge. W.ho says":the packetting of tea'under this.trade name bythe . 1st defendant has taken .place in Colombo. :;lf there is aninfringement at all it commences with..the packetting of;tea whichhas taken place in Colombo.'” One need not comment further oh.this factual assessment in consonance with the law'for the law.'can only protect the owner’s rights in'this "cOuhtry. '' .
. The' vital • .question is' therefore whether there Was aninfringement'at all. The.selection of the name Chai ELRabea'by
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the respondent lent itself to suspicion of fraudulent motive totrade upon the appellants reputation. The test applied by Fernan.
J..in converse in Rubber Corporation vs. Universal Rubber Products— Phillipines (18) S. C. 1987 — G. R. N. 27976 who expressedthe views referred to on the selection of the name was that therewas the likely effect of deception. It implied that no proof ofaqtual deception was necessary. The words in our statute itwould- be apposite to observe at this stage are "likely to misleadthe public". Pertinent to this- aspect of the discussion the viewexpressed-by Phillip. J. in Standard Oil'Co. of New Mexico vs.Standard OH Co. df California (1 9) with regard -to the choice ofthe Standard-Oil Co. by the defendant identified one objective indoing so by the. defendants namely 'to improperly obtainadvantage of the goodwill associated with the name standard oildf the plaintiffs.
:The Respondent must extricate himself from this situation bypurging his choice of name of a capacity-to deceive. Therespondent’s statement that his Egyptian buyer Enany wantedthis name pasted in-Colombo gives the-clue to his motivations.The; Respondent was made to use the name deliberately with aview to obtaining some advantage from' plaintiff's investment inprpmotipn and established goodwill of his Trade Mark. In thislease where the factsshow a sale to a middleman as distinct froman utljmate buyer —. the consumer, the tort is really completewhen-the amending goods are'soid to him. (DraperVs. Trist andothers (20) Mariton.' J!in Hecker H: 6.. Co. the. vs. Holland FoodCprporat'idp (21) held.'..that when'the defendant affixed "H. 0.Food"Jlabels ;to his goods packages and exported,, if is sufficientfor decision'to hold that, there was a. violation of the,plaintiffs 'H!
trade mark. Somewhat identical^ facts transpired in the instant.case. The; respondent 'has',affixed the labels in Colombo prior to.export and. Committed an'infringement of the Appellant's rights'as ai Registered owner of^the trade mark.
Theiearned Tr.ia'1 Judge gave his reasons’for holding that therewas no infringement. In considering the phrase "likely to misleadthe p,ublic"-in:Section;.1 T7 .of the^code, he.held that the evidenceshows, that the plaintiff -exported only to Saudi Arabia and thedefendant to Egypt'and there was no possibility of misleading the
CAM. S. Hebtulabhoy .& Company Ltd., v. Stassen Exports Ltd. &
.Another (Palakidnar. J.j193
public as they were in two different places.. He applied what maybe called a destination formula to decide the question.
The word "public" itwas strenuously contended was the publicat large and not the public of^'any particular destination. Thepublic was not merely the cons.uijner public but the.members ofthe business community as .well. We do' not think that it is inaccord or harmony with the concept of Trade mark law to take arestrictive view of the public and contain.them in geographically' defined areas, or political divisions or countries. At the trial it waspointed out that Saudi-Arabia is a unique country in the MiddleEast as- a centre of mu'slim pilgrimage. Muslims go to Mecca inSaudi Arabia from all over the world not to mention Egypt alone,'On more thian one occasion-every year. In. such a centre.it hardlyneed'be laboured-that the word "Rabea" associated with theplaintiff's tea has assumed a degree of popularity and goodwilllarge enough for Enany.to want1.tp pirate it to ;Egypt under his… own mark although preserving the place of its origin from SriLanka by affixing the labels in Colombo itself.,
In the case of Arthur Guiness Son and Company vs. Oscar VonBermuta Incorporated (22) the confusion of the names used- inthe complainant's brew and the defendants malt extract wasconsidered arid it was held that it would; be injurious and unfaireven if the complainant's products are not sold in this: Countryhow, it can be sold in the future.
The consumer public of a-future’ prospective – class is alsoprotected by the-policy of the law against infringemertt.
., In the case ol. Bropkes Brothers vs. Brookes .Clothing ofCalifornia (23) it was held by Yanwick. Ji. that: even if. goods arenot in. competition the law .protects .the plaintiff in his interests, ifother, goods,.services or business used by the plaintiff are likely .to.be regarded by prospective producers as, associated-.with.thesource indentified with the same name. One can easily beattracted to the argument that the respective products reachdifferent destinations! but -as< the learned trial -Judge himselfobserved,.the infringement if any took place in Golombo'. It is theinterests of.the Registered owner that are protected; by the law.
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(1989] 1 Sri L. R.
Kiley. J. in Tisch Hotels Incorporated vs: Americana InnIncorporated (24) said that even if the parties are not directly incompetition geographically, in size, or in cost of service, it doesnot preclude the relief sought by the plaintiff. Even though thecustomers of the plaintiffs hotels were in Mexico city and thedefendants would be in Chicago, one would conclude that thereis likelihood of confusion in the minds of the prospectivepurchaser.
The Counsel for the Respondent did not refer us to anyconsidered view already expressed on what may be termed thedestination formula postulated by the trial Judge. In our view it isan unwarranted and narrow view of the term "public'' and notreflective of the meaning that is intended to be attributed to it inits statutory context. The public is very properly the publicpresent, prospective,, local and foreign — A buyer who belongs tothe public at-large, not excluding the consumer in Sri Lanka itself..
If the trial Judge's view on the destination is correct then onemight expebt a statutory .requirement that the registered owner. should declare' his destination too in his application for a Trade.mark:
Therefore the answers to issues raised by the defendantsnumbered 10 to 20 are erroneous. The learned trial Judge alsoheld that Middle East referred to by the. appellant is restrictiveonly to Saudi Arabia. But Saudi-Arabia is one of the States in theMiddle East .and the appellant has been regarded as an exporterto the Middle East of which Saudi Arabia is one country. Theappellant's tea reaches its outlet to Basham the importer in SaudiArabia but the consumer public cannot be restricted to the publicof Saudi Arabia alone. There is no proof that there is such-arestrictive sale to Saudi Arabian consumers only. In a countrywhich includes a pilgrim traffic'on. a very large scale to Meccasuch a restriction on the identity of the consumer would be veryartificial or unrealistic.
We therefore hold that the first Respondent infringed the rightsof the appellant the owner of the Trade mark "Rabea." Theappellant is therefore entitled to an injunctive ..remedy against thefirst Respondent.
CAM. S. Hebtulabhoy & Company Ltd v. Stassen Exports Ltd &
Another (Palakidnar. J.).1195
We accordingly set aside the judgment of the learned trialJudge and grant the permanent injunction as prayed for by thepetitioner-appe'llant with costs fixed at fifteen thousand rupees.(Rs. 15,000/-) payable by the first Respondent and taxed costsof this court below.
The order for compensation is also set aside as the injuctionasked for is hereby granted.
P. R. P. PER ERA; j. — I agree.
S. N. SILVA. J. — I agree.
Judgment set aside
Permanent injunction granted. Order for payment of compensationset aside.