JUDGMENT 1. This is an appeal from a decision of Mr. Justice Ameer Ali restraining the Defendants from using the words "Camel Hair" as descriptive of, or in connection with, belting imported by them or any of them, or belting, (not being of the Plaintiff's manufacture), sold or offered for sale by them or any of them, without clearly distinguishing such belting from the belting of the Plaintiffs. The nature of the respective cases of the Plaintiffs and of the Defendants, is stated with sufficient accuracy, as also the issues, in the opening passages of the judgment of the Court of the first instance, and I think it is scarcely necessary for me to recapitulate them. 2. The law applicable to a case of this description seems to be reasonably clear: if any difficulty arise, it is as to the application of that law to the particular facts of the particular case before the Court. 3. The Plaintiffs are not suing for the infringement of any patent or of any trade mark, nor on the footing that the words "Camel Hair" constitute a fanciful designation, but upon the basis that the words "Camel Hair" have acquired a special or secondary signification in the Indian market, meaning that the belting, so called, is belting of their exclusive manufacture, and that, even if the belting sold by the Defendants be, from the nature of its component parts, accurately described as "Camel Hair," the Defendants are not entitled to sell it under that name, unless they clearly distinguish it from the belting manufactured by the Plaintiffs. The onus of making out that the words "Camel Hair" have acquired such a secondary signification lies very heavily on the Plaintiffs. They have to substantiate that, in the Indian market, Camel Hair Belting came to mean Reddaway's Belting and nothing else. It seems to have been assumed, notwithstanding some chemical expert evidence--the drift of which it is not very easy to follow--that both the Plaintiffs' and the Defendants' Belting was composed, at least partially, of what is known in the trade as Camel Hair, and it can scarcely be disputed by the Plaintiffs that every body who makes belting of Camel Hair is entitled to describe his belting as Camel Hair Belting provided he does so fairly. 4. 4. The question we have now to decide was very fully dealt with by the House of Lords in the case of Reddaway v. Banham 1896, App. Cases, p. 199, in which the law on the subject was laid down and in which the present Plaintiffs were ultimately successful. 5. To enable the Plaintiffs to succeed in the present action, they must establish two propositions:-- (1) That the name "Camel Hair Belting" has come to mean on the Indian market the Plaintiffs' Belting and nothing else, and (2) that the Defendants are selling belting made of Camel Hair, designating it as "Camel Hair Belting" so as to be likely to mislead purchasers into the belief that it was the Plaintiffs' Belting, endeavouring thus to pass off their goods as the Plaintiffs. 6. Both these questions are questions of fact, dependent upon the evidence in the case, and both these questions have been decided by the Court of first instance adversely to the Defendants. 7. Now, what is the evidence of the association of the name with goods of the Plaintiffs' manufacture so far as the Indian market is concerned ? The evidence on this point has been discussed, in much and careful detail, by the learned Judge in the Court of first instance, and as we concur in his conclusion we think it is scarcely necessary to enter upon such details again. We think it will be sufficient to summarise the conclusions which the evidence in our opinion justifies, and in arriving at them we have carefully considered the evidence adduced for the Defendants and the minute criticism to which that of the Plaintiff's has been subjected during the argument before us. The evidence to our minds shows that "Camel Hair" Belting under that name was introduced into the Indian market in the year 1883, and the goods were imported, advertised and sold under that name in India by the Planters and Stores Agency & Co., as the sole agents of the Plaintiffs. For ten years the Plaintiffs enjoyed a practical monopoly of the Hair Belting trade, their Belting, under the name of "Camel Hair" Belting, throughout this period acquiring an increasing reputation and securing a steadily increasing demand in the market. 8. In the year 1893 three different manufacturers sought to introduce their Hair Belting into the Indian markets under the name Camel Hair Belling. 8. In the year 1893 three different manufacturers sought to introduce their Hair Belting into the Indian markets under the name Camel Hair Belling. At this time it was possibly beginning to be known that Camel Hair was in reality only a descriptive name, and accordingly rival manufacturers thought they were entitled to attract to their goods some of the reputation which the Plain tills had acquired. These attempts were challenged by the Plaintiffs, and the manufacturers in question ceased to use the name "Camel Hair" for their belting. No other serious attempt to place Belting under the name "Camel Hair" in the Indian market was made until the year 1901. In that year several firms sought to place upon the market Hair Belting under the name "Camel Hair Belting." These attempts were again challenged, with the result that most of the firms abandoned the use of the name: others persisted in using the name, prefixing the name of the importer or manufacturer to distinguish their goods from those of the Plaintiffs. In the following year the Defendants commenced to advertise Camel Hair Belting, at first under that name simpliciter, and afterwards in conjunction with their own name as Schroder Smidt "Camel Hair Belting" or S.S. & Co.'s "Camel Hair Belting." The Defendants are a well known firm of merchants and importers in Calcutta. They are not manufacturers and the goods in question are manufactured in Germany, and they are purchased and imported into this country by the Defendants. The action of the Defendants constitutes undoubtedly the most serious attempt which has been made in India to interfere with the right claimed by the Plaintiffs. The Plaintiffs promptly challenged the Defendants' action and insisted on their ceasing to use the words "Camel Hair" in connection with any belting imported and sold by them. The Defendants, while denying the right of the Plaintiffs to any exclusive use of the words, offered to substitute the words "Camel Wool," instead of the words "Camel Hair," as applied to their belting. This offer not being accepted, the present suit was instituted. 9. It may be that, in the correspondence before suit, the Plaintiffs put their case too high: We are far from deciding to-day that the Plaintiffs are entitled to the exclusive use of the word "Camel" in connection with their belting. This offer not being accepted, the present suit was instituted. 9. It may be that, in the correspondence before suit, the Plaintiffs put their case too high: We are far from deciding to-day that the Plaintiffs are entitled to the exclusive use of the word "Camel" in connection with their belting. The case, however, was fought out in the Court of first instance upon issues substantially identical with those in Reddaway v. Banham 1896, App. Cases, p. 199. 10. The evidence shows that the Plaintiffs' Camel Hair Belting has acquired a high reputation in the Indian market, and that it commands higher prices than any other kind of Hair Belting which has at any time been introduced into this country. For a long period of years the Plaintiffs' Belting has been solely and exclusively known in the Indian market as "Camel Hair" Belting: though, apparently, since 1896 they used also to describe it as Reddaway's "Camel Brand Belting," but they never, ceased to describe it as "Camel Hair" Belting. Occasional and cautious attempts have been made during the later period of the time by others to use the name " Camel Hair" in connection with Belting advertised or imported in this country, but these attempts were abandoned. No other trader or dealer has succeeded in obtaining a permanent position in the market for goods known as "Camel Hair" Belting; much less has anyone other than the Plaintiff's succeeded in establishing a reputation as dealers in "Camel Hair" Belting. Throughout this period the Plaintiffs have succeeded in maintaining their position as the only users of the name in connection with their Belting, and their claim to the exclusive use of this name has, in effect, and in many cases, been conceded by rival traders. 11. We think it may be fairly inferred that this result has to a large extent been brought about by the impression still entertained in some quarters that the words "Camel Hair" continued to be what the Plaintiffs claimed it to be originally, a fancy term, employed by the Plaintiffs for describing their goods. Upon these grounds we entirely agree with the learned Judge that the Plaintiffs have succeeded in establishing the proposition that "Camel Hair" Belting in the Indian market means and signifies Belting of their own exclusive manufacture. 12. Upon these grounds we entirely agree with the learned Judge that the Plaintiffs have succeeded in establishing the proposition that "Camel Hair" Belting in the Indian market means and signifies Belting of their own exclusive manufacture. 12. We should have been prepared to come to this conclusion upon the evidence which was before the Judge in the Court of first instance but his view is strongly supported by portions of the correspondence between the Defendants and the manufacturers, Herold & Co., whose manufactory was in Germany. That correspondence was not before the Court of first instance. It was not disclosed in the Defendants' affidavit of documents as most certainly it ought to have been. When, in the course of the cross-examination of the witness Each, the existence of this correspondence was for the first time disclosed, the Plaintiffs' counsel at once demanded that it should be produced, and in effect the learned Judge ordered its immediate production, notwithstanding the strongest opposition on the part of the counsel for the Defendants, who went so far as to say that, if the order were persisted in, they would retire from the ease We regret that, apparently under such pressure, the learned Judge did not insist upon making the order, and we deprecate very strongly the attitude of counsel, for which we can find no justification in the action of the learned Judge. It is only fair to say that when we said that that correspondence must be produced, no opposition was raised here, and a further affidavit of documents was made and the correspondence was, by consent, admitted. By its non-production in the Court of first instance the Plaintiffs have been placed at a distinct disadvantage, for had it been in their hands when the Defendants wore under cross-examination, it would have afforded material for pertinent questioning. That which looks to us like a deliberate attempt to suppress this correspondence has made a very unfavourable impression upon our minds: the excuse suggested is scarcely worthy of the name. 13. Upon the question of whether or not the words "Camel Hair" have a special or secondary signification on the Indian market, the Defendants' letter of the 24th April 1902, to Herold, the German manufacturer approaches very closely to an admission that such was the case. 13. Upon the question of whether or not the words "Camel Hair" have a special or secondary signification on the Indian market, the Defendants' letter of the 24th April 1902, to Herold, the German manufacturer approaches very closely to an admission that such was the case. They ask Herold whether he had beard anything to the effect that the description 'Camel Hair' may only be used with reference to the make of a single, and "We think English firm" (this can only refer to Reddaway's), and ask if he will take the consequences if they, the Defendants, offer his goods as 'Camel Hair Belting.' It would, perhaps, have been interesting if we could have learnt what the two cuttings from the local newspaper, referred to, in the letter, were, and this no doubt would have been el sited, if Hach could have been cross-examined on this letter. When that letter was written the effect of the decision in Reddaway v. Banham (sic) 1896, App. Cases, p. 199 was doubtless well-known in the trade, viz., that "Camel Hair" Belting was not a fanciful term and in consequence that Reddaways were only entitled to protection on the footing of the words "Camel Hair" having acquired on the Indian market a special or secondary signification, and, if so, the Defendants' letter would seem to indicate that they recognized that such special signification had, in fact, been acquired. Herold's answer to that letter is very significant. He tells the Defendants that the description "Camel Hair Betting " was protected in England and the Colonies "and nothing can be done against that." But he tells them that they will be safe if they sell his belting under the description "Herold's Camel Hair Belting," but that "Camel Hair Belting" simpliciter was not permissible. This course was not adopted, and the Defendants tell us why: in their letter of the 8th May they say explicitly that it would be "very difficult, if not impossible" to sell the Belting if it showed any mark, sign or name of the German firm which manufactured it: it would in effect be a drug on the market. And here the language of Lord Macnaghten in Reddaway v. Banham 1896, App. And here the language of Lord Macnaghten in Reddaway v. Banham 1896, App. Cases, p. 199 seems to be pertinent: "When a manufacturer's goods are a drug on the market so long as they bear his own name or proclaim their true origin, and yet are saleable at once if marked with nothing but some common English words, and when that manufacturer holds himself out as ready and willing so to mark his goods, and does so mark them at the instigation, and he says, of a purchaser, a Lancashire Jury may perhaps be trusted to read the riddle." We are satisfied on the evidence that the name "Camel Hair Belting" had come to mean on the Indian market the Plaintiffs' Belting and nothing else. 14. We now pass to the second point:--Are the Defendants selling Belting made of Camel Hair, designating it as "Camel Hair Belting" so as to be likely to mislead purchasers into the belief that it was the Plaintiffs' Belting, endeavouring thus to pass off their goods as the Plaintiffs' ? It is contended for the Defendants that, as they advertise their Camel Flair Belting as "Schroder Smidt & Co.'s" Belting, (though this was not done in the advertisement of the 18th December 1902--Ex. 'C1'), they are acting quite fairly and no one is likely to be deceived There would be great force in this contention were it not for the fact that the Defendants are only importers and not manufacturers, and it is well known in the trade that they are only importers, in fact in the advertisements (Exs. C1 and C4) they describe themselves as importers. They, however, rely on the evidence of Danby that it makes no difference whether the name of the manufacturer or of the importer is mentioned, but this answer was, we think, given in connection with the Plaintiffs' claim to the exclusive use of the word "Camel" and to the fact that in course of time the prefixes drop out. They, however, rely on the evidence of Danby that it makes no difference whether the name of the manufacturer or of the importer is mentioned, but this answer was, we think, given in connection with the Plaintiffs' claim to the exclusive use of the word "Camel" and to the fact that in course of time the prefixes drop out. If then they are merely importers, and if the name "Camel Hair Belting" had come to mean on the Indian market the Plaintiffs' Belting and nothing else, a purchaser is, we think, likely to be deceived, when buying the Defendants' Belting, into believing that he is buying Reddaway's. But if there were any doubt on this point the correspondence between the Defendants and Herold would appear to set it at rest. It is impossible to read that correspondence without concluding that the real object of the Defendants was to place Herold's Belting on the market in such a way as to induce purchasers to believe that it was Reddaway's. In order to succeed, the Plaintiff's must show a probability of deception, but if the object of the Defendants were such, as I have stated, "why" to quote Lord Lindley's language in Slazenger v. Feltham 6 R.P.C. 531 (1889) "should we be astute to say that the Defendant cannot succeed in doing what he was straining every nerve to do." 15. The correspondence affords strong ground for concluding that the Defendants were aware of the special significations which the term "Camel Hair Belting" had attained on the Indian market, and shows clearly that the Defendants were solicitous that the Belting was not to show any mark, sign or name of any firm as, if so, it would be almost impossible to sell it, that the name of the firm was not even to be given on the packing case, that the Defendants absolutely refused to sell it as "Herold's Camel Hair Belting," that in the opinion of Herold it was not even necessary to mark the goods as 'made in Germany' if they shipped them from London, that the Defendants declined to call the Belting "Hero Camel Hair" or by any distinctive term, that Herold's Belting was to be made exactly like Reddaway's (in itself legitimate, in the absence of any patent)--'a la Reddaway' as some of the letters say--that the buying public took Reddaway's make as the basis for judging a Belting, as it had known that Belting for years as the best in the market, that Reddaway's had a monopoly of the article, and that the Defendants refused to have Herold's Belting stamped with an elephant, or to have any stamping on their Belting. It is true that in their letter of 21st August 1902, the Defendants say: "It is by no means our intention to sell your beltings as Reddaway's:" but we are unable to attach any real importance to this statement in the face of the rest of the correspondence and the object which that correspondence discloses. 16. Why this intense solicitude on the part of the Defendants to keep back from the buying public the fact that the Belting was really Herold's? The inference is almost irresistible that the Defendants wished so to place their goods on the market that purchasers might be misled into thinking they were Reddaways, and to gain advantage of the reputation which Reddaway's goods had attained. Nobody had a right to represent his goods as the goods of some body else, and the correspondence seems to us to show conclusively that this is what the Defendants were desirous of doing, and intended to do. Nobody had a right to represent his goods as the goods of some body else, and the correspondence seems to us to show conclusively that this is what the Defendants were desirous of doing, and intended to do. The method adopted by the Defendants in advertising and selling their goods was calculated in our judgment, to lead purchasers to believe that they were buying goods manufactured by Reddaways, when they were atcually buying these manufactured by He voids by which the purchasers will be deceived and the Plaintiffs injured. That this was their object is plain from the correspondence, and to effect this object they carefully suppressed the name of the German manufacturer, declined to give their belting any distinctive name, such as "Hero," had it made exactly like Reddaways because that was known as the 'best on the market,' and refused to have it stamped with any distinctive mark. 17. Upon the evidence, then, the second question must be answered in the affirmative. 18. These findings dispose of the case, though we propose to deal shortly with various points raised by the Defendants' counsel, who argued their case with much earnestness and ability. 19. It is said that the suit ought to he dismissed because the Plaintiffs falsely alleged they had a patent, for what is not clear, whilst they had no patent, and that they have been guilty of such misrepresentation as to disentitle them to any relief in a Court administering equity, reliance being placed on the language of Lord Kingsdown in the Leather Cloth Company v. American Leather Cloth Co. 11 H.L.R. 542 (1865). 20. The question of whether or not the Plaintiffs had taken out any patent was never in issue in the case, and there is nothing to show that Danby's statement is untrue. There is no evidence to show there was any misrepresentation on this head. 21. It is next said that the user of the term "Camel Hair" has not been universal, but has been used interchangeably with Reddaway's "Camel" Brand Hair Belting, and "Camel" Brand Belting. This apparently was so for some time after September 1896 and was probably attributable to the decision in the House of Lords which held that the term "Camel Hair Belting" was not a fanciful one. This apparently was so for some time after September 1896 and was probably attributable to the decision in the House of Lords which held that the term "Camel Hair Belting" was not a fanciful one. But for years previously Reddaways had used the term "Camel Hair" Belting and it had acquired, during that period, the secondary signification we have mentioned. We do not see how the Plaintiffs can be said to have lost the advantage of this by reason of the fact that, they called some of their Belting Reddaway's "Camel" Brand Hair Belting, which represented a superior class of Belting, to that which they sold merely as "Camel Hair" Belting. 22. Then it is urged that the evidence showing such secondary signification is confined to Calcutta and Cawnpore, and that it is necessary that it should be shown that it had been acquired over the whole of India and reliance is placed on the observations of Lord Shand in the "Cellular Cloth" case 1899, App. Cases, p. 326. It is said that it has not been shown that this secondary meaning was universal all over India But the question seems to be whether the name bad come to mean, not over the whole of India but on the Indian market the Plaintiffs' belting, and the evidence--oral and documentary--indicates, as we think clearly, that the words had been so accepted and known, and that, the object of using them without clearly distinguishing their own goods was to filch away the Plaintiffs' trade. 23. Then we are told that there is no evidence of any damage, that Danby has admitted there was no damage, and that as some 99 per cent. of the Belting sold by the Plaintiffs in India was "Camel Brand" Belting, no injury has accrued to the Plaintiffs by reason of their action. As regards Danny's evidence (p. 218), his answer seems to be in connection with his commission on direct sales, and not as regards the trade generally. But the Defendants insist upon a right to sell their goods simply as "Camel Hair Belting." This they are not, in the circumstances, entitled to do without clearly distinguishing their Belting from the Belting manufactured by the Plaintiffs. It is not necessary to allege special damage. 24. It is said there is no evidence that any one has been deceived : but this is not essential. It is not necessary to allege special damage. 24. It is said there is no evidence that any one has been deceived : but this is not essential. The question is whether the manner in which the Defendants are advertising and selling their goods is calculated to deceive. No doubt the fact that, no one has been actually deceived is an element in considering the question of the probability of deception: but it is not conclusive. It is said Danby only spoke of a possibility of deception : but looking at his evidence as a whole we do not think this is what he meant. At page 253 he says, "There would be a great liability to deception and that people would be deceived." This particular question, if the case had been tried with a jury, would have been left to the jury, and we, as judges of fact, have to decide it. 25. The last point was that the Plaintiffs had abandoned the term "Camel Hair" Belting, when they adopted the term "Camel Brand Belting" but they still continued and have always continued to use the term "Camel Hair" Belting, and doubtless used the term "Camel Brand" by reason of the fact that they had registered that name as a trade mark. It is difficult to say that the Plaintiffs had abandoned the term "Camel Hair" Belting, when they were continuously using it, and using it up to the time of suit. 26. Much reliance was placed by the Defendants on the Cellular Clothing Co. v. Maxton 1899, App. Cases, p. 326 and the case of Parsons v. Gillespie 1898, App. Cases, p. 239, 1897. Those cases do not appear to lay down any new principle, and were severally decided upon the facts applicable to them, and consequently can be of no real avail as authorities for the case now before us, which, as involving only questions of fact, must, be decided upon the evidence before us. As was pointed out by the House of Lords in Reddaway v. Banham 1896, App. Cases, p. 199 the injunction granted does not prevent the Defendants from using the words "Camel Hair" in connection with the Belting they sell : it only prevents them from so using them as to mislead the public. 27. The appeal must be dismissed with costs. 28. Cases, p. 199 the injunction granted does not prevent the Defendants from using the words "Camel Hair" in connection with the Belting they sell : it only prevents them from so using them as to mislead the public. 27. The appeal must be dismissed with costs. 28. As regards the case, Reddaway v. Solomon, there is good ground for thinking that the Defendants intended at first to be content to abide by the decision in the case just disposed of. Any way it was agreed that the evidence in the latter case should, so far as applicable, to taken as evidence in this, and no fresh evidence or arguments were adduced in the Court of first instance. The evidence in both cases then is the same, except that we have not in this case the correspondence which had in the other. 29. It has been admitted by the Plaintiffs that the advertisement Ex, B3 is not open to objection. The Defendants, however, admit that on four occasions in January 1902 they sold Belting as "Camel Hair" Belting simpliciter, and insist on their right to do so. If it had not been for this insistence, the suit probably would not have been brought. We do not think they possess this right, and that this case is virtually disposed of by the judgment just delivered in Reddaway v. Smidt. The appeal is dismissed with costs.