[1938] EACA 6

## COURT OF APPEAL FOR EASTERN AFRICA

## Before SIR JOSEPH SHERIDAN, C. J. (Kenya); SIR CHARLES LAW, C. J. (Zanzibar); and LANE, Ag. J. (Kenya).

#### THE EAST AFRICAN TOBACCO CO., LTD., Appellants (Original Plaintiffs) v.

# THE COLONIAL TOBACCO CO., LTD, Respondents (Original Defendants)

## Civ. App. No. 24/1937

### (Appeal from decision of Francis, J. (Uganda))

### Passing-off—Trade Mark—Injunction.

After the appellants' "Crescent & Star" brand of shag tobacco had established a considerable reputation amongst the native peasants of the Eastern and Northern provinces of Uganda, where it is generally known among illiterate natives as "Chapa ya Feza" or Silver Brand, the respondents put on the same market their "Mpanga Brand" of shag tobacco which was sold in packets identical in size, colour and shape with the packets in which the appellants' tobacco was sold. The labels of both brands were affixed to the packets in the same manner and position and though they bore different designs they were identical in size and colour.

Both brands were sold by retailers to illiterate natives as "Chapa va Feza".

Held $(15-2-38)$ .—That if a manufacturer sells goods in a get-up which so clearly resembles that of another person's goods as to enable his own goods to be sold as the goods of that other person, the manufacturer puts an instrument of fraud into the hands of the shopkeeper. The law will not permit a manufacturer to put a shopkeeper in such a position.

Ishmael with Houry and Wilkinson for the appellants.

Baerlein for the respondents.

Sir Joseph Sheridan, C. J.—In arguing this appeal for the appellants, Counsel has relied on a judgment delivered by me in the case of Van Nelle v. Tanganyika Industrial Tobacco Co., Ltd., Civil Case No. 58/1932 of the High Court of Tanganyika. I have once more read and considered the judgment in that case and come to the conclusion that though there are such differences as one would expect to find in the facts of two cases, they are not of such a character as to distinguish the case as an authority from the facts of the present case. Regarding the case as an authority for my decision in the present case, I find it convenient to incorporate that judgment as part of my judgment in the present case. It is attached to this judgment. Having done that, I will content myself with saying that in the case under consideration, the learned trial Judge found that the appellants' packets of tobacco in the get-up in which they were sold-and for the most part they were sold to illiterate natives in Uganda-were exposed for sale in a get-up which earned for the tobacco the title of Chapa Ya Feza (Siiver Brand). It may be said that phonetically and pictorially the packets answered that description. Subsequent to the appellants' tobacco becoming so known there came on the same

market the respondents' tobacco in a get-up the undoubted feature of which to the eye of the illiterate native, particularly in the dim surroundings in which the packets were exposed for sale, the manner in which they were taken down from the shelf of the Indian Duka, wrapped up and handed to the purchaser, was the striking silver label. True there were dissimilarities as always happens in such cases, but bearing in mind the class of customer they were not such as to prevent the likelihood of his being deceived into purchasing what he believed to be the "Chapa ya Feza" by which the appellants' tobacco had come to be known. There is evidence to show that deception actually did take place, though it is settled law that it is not incumbent on a person occupying the position of the appellants to go the length of proving that. Shopkeepers called as witnesses gave evidence that they set themselves out, and successfully, to pass off the respondents' tobacco as the goods of the appellants, giving the convincing reason that by so doing they earned a profit. In my opinion, the respondents aimed at copying the get-up of the appellants with a view of gaining some of the commercial advantages acquired by the appellants, that not only did they succeed in putting upon the market an article so arranged that it was likely to be mistaken for the goods of the appellants but that deception was actually caused.

In allowing the appeal, I would make the following order: It is hereby ordered $(a)$ that the respondents, their servants and agents be restrained from selling or offering for sale or disposing of any tobacco not being manufactured for or by the appellants in the form of Exhibit S (annexed to the plaint and marked " $B$ ") admitted in this action to have been issued by the respondents; $(b)$ the respondents will deliver up as requested all the wrappers with labels attached as complained of in the prayer to the plaint; (c) the case is referred back to the High Court in order that directions may be given for the taking of an account of profits and the payment of the amount found to be due thereupon to the appellants.

The appellants will have the costs of the appeal and in the High Court.

N. B.—(The judgment in Van Nelle v. Tanganyika Industrial Tobacco Co., Ltd., Civil Case 58/1932 of the High Court of Tanganyika which is incorporated in the above judgment of Sir Joseph Sheridan has not been reported elsewhere. It is printed at the end of this report.— $Ed$ .).

Sir Charles Law, C. J.—This case illustrates the observations of Chitty J. (at p. 502) in *Lever v. Goodwin* (4 R. P. C. 492), with regard to passing-off actions, wherein he remarked that "no defendant, so far as I know, puts forward an exact copy. The imitation would be too gross... He tries to take many of the striking points in his adversary's wrapper or the like, then he puts in certain points of distinction ... the intention being to make it as like as can be for the purpose of deceiving the ultimate purchaser, and still reserving a loop-hole for escape when the matter is brought into Court by saying the two things are not alike".

In the present case the learned trial Judge found that the plaintiffs' "Crescent & Star" brand (Ex. C) of shag tobacco had acquired a considerable reputation among the native peasants of the Eastern and

Northern provinces of Uganda, areas in which plaintiffs claim to have suffered damage by reason of the distribution and sale of defendants' "Mpanga" brand (Ex. S), and further, that plaintiffs' brand is generally known among illiterate natives as Chapa ya Feza or white brand. He found also that plaintiffs were the first producers of shag tobacco in Uganda to make use of a bright aluminium label, and that their method in affixing that label to the packet was to allow one end of the label to overlap on to the reverse side of the packet.

There can be no doubt whatever that the defendants' desire was to procure a label closely resembling plaintiffs' label, both as to size and colour. So much so that they approached Mr. Helm, through whom the plaintiffs had obtained their labels, and asked him to supply them with labels similar to those he had supplied to the plaintiffs. Plaintiffs' label is of bright aluminium with blue lettering and design. On Mr. Fielm pointing out to the defendants that they ran the risk of colourable imitation, the defendants expressed the intention of altering the printing from blue on aluminium to aluminium on blue. They did not obtain their labels through Mr. Helm, but procured them from elsewhere with blue and aluminium printing, both as to wording and design, on an aluminium and blue background. A casual inspection of defendants' labels leaves the undoubted impression on the mind of a preponderance of aluminium colouring, as is the impression regarding plaintiffs' label. Defendants' label was the same size as the plaintiffs, and they affixed it to their packets with an overlap in the same manner as that adopted by the plaintiffs. The printing on all the labels is in the English language.

In Johnston v. Orr Ewing (7 A. C. 219), the Lord Chancellor observed at p. 225, "But although the mere appearance of these two tickets could not lead anyone to mistake one of them for the other, it might easily happen that they might both be taken by natives of Aden or of India, unable to understand the English language, as equally symbolical of the plaintiffs' goods. To such persons, or at least to many of them, even if they took notice of the differences between the two labels, it might probably appear that these were only differences of ornamentation, posture and other accessories, leaving the distinctive and characteristic symbol substantially unchanged. Such variations might not unreasonably be supposed to have been made by the owners of the plaintiffs' trade mark themselves for reasons of their own". In that case there was the distinctive and characteristic elephant symbol on the plaintiffs' ticket which the defendants adopted by way of different arrangement on their ticket. In the present case, though the symbols or designs on both labels are quite different, the distinctive and characteristic feature of the plaintiffs' label is the preponderance of aluminium colouring with blue printing which the defendants have successfully reproduced in their labels. In addition, there is the fact that defendants have the same sized packets as plaintiffs and affix their labels to their packets in a similar manner to plaintiffs. $\mathbf{A}$ these circumstances, coupled with Mr. Helm's evidence, establish most clearly that defendants were endeavouring to produce an article in appearance so similar in get-up as to be calculated to deceive purchasers, the illiterate natives of Uganda, into believing that they were buying plaintiffs' goods.

It has been oft-repeated that a plaintiff need go no further than to establish such circumstances. In the present case, however, there is also evidence of actual deception of native customers by dishonest retailers. It is true that in some instances, the deception was detected and defendants' goods were refused. But in other instances the deception succeeded; sometimes because of assurances of dishonest retailers that it was the plaintiffs' goods which were being bought. Defendants doubtless put a weapon of fraud into the hands of the retailers.

It has been argued for the defendants that there can be no deception if the customer had not a reasonable opportunity to inspect an article. On the other hand, on behalf of plaintiffs, we have been referred to the case of Cordes and others v. R. Addis and Sons (40 R. P. C. 133), where it was pointed out by Eve J., at p. 139 that where an article is such as is bought hurriedly—as would be the case with packets of tobacco—the similarity increases the risk of deception. In the present case, the articles were of a common shape and appearance.

Though the learned trial Judge appears to have fully appreciated the correct principles to be applied in such cases as this, yet he dismissed plaintiffs' case because he felt far from convinced that proof of actual deception had been established. In this respect, for reasons already given, not only was such proof not necessary but there was in fact some evidence of actual deception. In any event there was evidence of intention to deceive followed by the use of a label by defendants in such a manner as to be calculated to deceive illiterate purchasers into believing that when buying defendants' goods they were buying plaintiffs' goods.

Plaintiffs say that their trade has diminished very appreciably since defendants introduced their offending labels. That evidence is uncontradicted, and no attempt was made to contradict it. Defendants themselves have not ventured to give evidence in the case.

In the circumstances, I would allow the appeal with costs and would respectfully concur with the order made by the learned President.

Lane, $Ag. J.-I$ agree with the judgments of my learned brothers and have nothing to add.

Van Nelle v. Tanganyika Industrial Tobacco Co., Ltd.

Civil Case 58/1932 of the High Court of Tanganyika.

Sir Joseph Sheridan, C. J.—The plaintiffs are a trading firm with their head office at Rotterdam in Holland. For at least 37 years they have imported for sale in this country and other parts of East Africa a shag tobacco; according to the evidence of Suleman Daya who is one of the plaintiffs' agents in Tanganyika, this shag tobacco which is referred to by the English name of The Rising Hope was being sold in this country in the year 1895. He said, "In 1895, I sold Rising Hope tobacco—the same as being sold to-day, in the same get-up as to-day. The get-up may be described as follows: The tobacco is contained in a wrapper of very dark blue which at a little distance is

almost indistinguishable from black, on the wrapper there is a label one half of which is of a much lighter blue and contains in block characters the words "The Rising Hope" in a convex fashion at the top with the word "Rotterdam" in somewhat smaller print beneath, then follows in still smaller print the words "The 1st quality shag is supplied with our signature" and finally follows the signature "De Erven de Wed J. Van Nelle". The lettering runs from the exposed end on to the face of the packet. This blue portion of the label covers the end of the packet which is exposed to view when the packets are stacked on the shelves of a duka and covers half of the face of the packet, the remainder being of a dark blue similar to the wrapper and covering the remaining half of the face and the end of the packet which when placed on the shelf is hidden from view; this dark blue half of the label was mistaken by me at the first for part of the wrapper and bears no writing or marks of any kind. It is admitted by the plaintiffs that the shape of the packet, the colour of the wrapper and the presence of black lettering are features common to the trade. I should have said that there is a black oval device stamped on the back of the wrapper which did not catch my eye until my attention was attracted to it. Probably, I had not looked at the back. The lighter blue part of the label containing the words I have quoted is of a very striking character. It is the feature of the get-up of the packet that immediately strikes the eye. From at least 1895 this tobacco of the plaintiffs was the only shag tobacco in the East African market and according to the evidence it was referred to by the natives as tumbaku kali which means nothing more or less than strong tobacco as opposed to other tobacco which is called *baridi* meaning mild or medium. Suleman Daya said that when other shag tobaccos began to make their appearance in the market the plaintiffs' tobacco acquired the title *tumbaku asli* which I think means "the real or genuine tobacco" from the natives. It would appear that there. was no other shag tobacco in the market until 1909 or 1910 when the Usagara Co. began to import Samson shag which had a red label and the get-up of which could not in any circumstances be confused with that of the plaintiffs' tobacco. Towards the end of 1930 the Macedonia Tobacco Co., of which the Managing Director of the defendant Co., Mamakos, was a member, put a local shag tobacco on the market in a packet of very bright (Cambridge) blue with a blue label of a faintly deeper colour, Ex. Q1. Neither the label nor the get-up could in any circumstances be confused with the label or get-up of the plaintiffs tobacco. One has but to look at the exhibits to see this. The present plaintiffs sought to obtain an injunction restraining the Macedonia Co., from using the words "tumbaku asli" but in this they were unsuccessful in the High Court and the Court of Appeal. The present action is for an injunction restraining the defendants from using a get-up which is referred to in para 4 of the defence which reads: —

"The defendant company has lately commenced the business of tobacco manufacturers and the plaintiffs have recently discovered as the fact is that the defendant company is selling a shag tobacco in packets of approximately the same size as the plaintiffs' packets, the wrapper and label being of the same colours as those used by the plaintiffs, and with lettering in black print in a curved line upon the said label, colourably imitating the

general get-up of the plaintiffs' tobacco as referred to in paragraphs 2 and 3 hereof. The shag tobacco as marketed by the defendant company is calculated to deceive purchasers and intending purchasers of the plaintiffs' shag tobacco and to pass off the defendant company's shag tobacco as and for the shag tobacco of the plaintiffs and has thereby caused injury to the plaintiffs."

Paragraphs 2 and 3 of the plaint read respectively: $\rightarrow$

"2. The plaintiffs have for many years manufactured a shage tobacco which is sold in packets or cartons made up in dark blue packing paper with light blue labels and with lettering in black print in a curved line on the said light blue label. The said packets or cartons are of three sizes, full size, half size and quatter size.

3. The plaintiffs have extensively advertised and sold their shag tobacco made by them in the said dark blue packets with light blue labels and for nearly half a century have been and are sole users of the packets as made up and referred to in paragraph 2 hereof. In consequence thereof the said general get-up of the plaintiffs' shag tobacco has become associated in Tanganyika and particularly amongst the inhabitants of Tanganyika who are unable to read English print or writing as distinguishing the shag tobacco of the plaintiffs' manufacture from other shag tobaccos".

Now in considering this case it has to be remembered that the blue label on the plaintiffs' tobacco is of a very striking character-to my mind the most striking feature of the get-up—that the sales are to Indians, Arabs and for the most part to natives, persons who are not, except in rare cases, able to read English. For years—at least as far back as 35 years ago-the plaintiffs have sold their shag tobacco in Tanganyika with a peculiar blue label affixed to the packet, the appearance of which must have been particularly to the eye of an ignorant person unable to read, such as to suggest that the tobacco was the plaintiffs. A blue label of the kind had become exclusively identified with the plaintiffs goods until 1931. The plaintiffs' shag tobacco commanded and still commands the largest sale all over the country. No other firms importing tobacco would according to the evidence have adopted a blue label. There was great difficulty according to the defendants' witness Issa in placing the defendants' tobacco on the market. The selection of a blue label practically identical in shade with that of the plaintiffs particularly when it is affixed to a dark wrapper in these circumstances requires some explanation. Such a selection with the admitted prosperity of the plaintiffs over many years is of significance. The defendant with his knowledge of the local market for over 20 years knew the unique position the plaintiffs held in the market for shag tobacco and must have appreciated that a get-up with the well-known striking blue colour on his blue label would be a decided advantage in launching his tobacco on the market; he knew that the trade in shag tobacco depended for the most part on persons who were unable to read and, a point of some significance, he knew the manner in which the packets of tobacco would be exposed for sale on the shelves in the dukas. With this knowledge and the further knowledge that the packets were of uniform size and contained in dark wrappers he should have taken great care in selecting a label to see it was really distinguishable from that

attached to any other shag tobacco in the market. I do not say that he was absolutely debarred from selecting a blue label but I do say that in his doing so it behaved him to ensure that it was distinguished in such a way as that the packets could not be mistaken for those of the plaintiffs. Must not the blue label of the plaintiffs have acquired a signification not phonetically, but pictorially amongst the illiterate persons accustomed to purchase it giving the packets the character of being manufactured by the plaintiffs? The blue label on the market which I have to consider must be deemed to have acquired a signification which it could never have acquired in England. It seems to me that just as the words "camel hair" in the case of Reddaway v. Benham (1896 A. C. 199) came to mean not belting made of a particular material but belting made by a particular manufacturer or as the word "Glenfield" in the case of Wotherspoon v. Currie (L. R. 5 H. L. 508) acquired a similar secondary signification, the blue label, in its environment as I would put it, must have come to mean shag tobacco manufactured by the plaintiffs. The defendant clearly knew of the signification and attractiveness of a blue label when he made his selection. It is true that the defendants label is of a blue colour over the face of the packet as well as both ends that there is what is presumably a correct account of the origin of the tobacco on the label, that on the right of the label there is a trade mark of a tree or plant with the words Excelsior above it and No. 1 Kali Sana below it; there is further as distinct from the plaintiffs' packet no device stamped on the obverse of the packet. The question is whether these distinguishing features were sufficient to distinguish the get-up from that of the plaintiffs. There are always in such cases resemblances and distinguishing features, for reasons which will appear. In the case of *Lever v.* Goodwin (4 R. P. C. 492) at p. 502 Chitty J., says: "I will state my experience again in such matters. No defendant ever, so far as I know puts forward an exact copy. The imitation would be too gross and consequently I am sorry to say I have known this in many cases and what is done is this. He tries to take many of the striking points in his adversary's wrapper or the like; then he puts in certain points of distinction to which when the matter is brought before a Court of Justice, he can refer and say: 'You say they are alike'. Why, see here there are so many points of distinction ... and I have had cases in which when the document has been produced, it has been seen, that there has been a cunning alteration here and there, the intention being to make it as like as can be for the purpose of deceiving the ultimate purchaser, and still reserving a loop-hole for escape when the matter is brought into Court by saying the two things are not alike."

What does the average native customer see when he enters a duka? If the packets of tobacco are stacked on the shelf he would see the blue end with black lettering which means nothing to him exposed; this would be the case whether the tobacco was that of the plaintiffs or defendants, possibly he might notice also that the black lettering on the end of the packet whether that of the plaintiff or defendant was of a curved fashion. Is it not likely-reasonably likely—that he would mistake one packet for another? This would particularly be the case if over a number of years he was accustomed to associate a blue label with the plaintiffs' tobacco. But then it is said his being deceived presumes fraud against the shopkeeper and fraud should not be presumed. When a get-up so clearly resembles

that of another person so as to enable what it contains to be passed off as the goods of another the manufacturer puts an instrument of fraud into the hands of the shopkeeper (Lever v. Goodwin (supra)), what matters is that the resemblance in the get-up enables a shopkeener to pass off the goods of one person as those of another and not the fact that he being an honest man refrains from doing so. The law will not permit a rival manufacturer to put a shopkeeper in such a position. When it is said that fraud should not be presumed I take it to mean that where the get-up of two articles is dissimilar a second manufacturer cannot be held responsible for the fraud of a shopkeeper in removing one article from its get-up and putting it in the get-up of the other and so deceiving a customer. For instance putting golf balls of one brand into the box made for those of a superior brand. In holding a manufacturer responsible for the dishonesty of a shopkeeper, obviously such a case of gross fraud is not contemplated and could not lead to the granting of an injunction. In the case of the present plaintiffs $v$ , D. O. A. G. (Zanzibar L. R. 1909, 295) in a passing-off action in which the plaintiffs were granted an injunction, Murison J., said at pages 298 and 299, "All of the printing of each label is in the English language. These differences would seem at first sight to be substantial. But it has to be remembered (as appears in the evidence) that no European buys this tobacco in Zanzibar. All the sales are to Indians, Arabs, or Swahilis. Not one in a hundred of these can read English and it therefore follows that for their power to distinguish one packet from the other, purchasers are dependent upon their observation of the print as a mere collection of hieroglyphics. With the packets together this might not be very difficult. But it is not the test. The test is whether any unwary and casual purchaser would, if one packet alone were offered to him, be likely to be deceived in his purchase". Later in his judgment he says: "The colour of the label is of the greatest importance. It is certainly not a necessity of the case that there should be such an extraordinary resemblance in the colour. There are fifty colours that should have clearly and finally distinguished the defendants' packages from the plaintiffs, but the defendants for reasons best known to themselves ignored the opportunity. Even if they had kept the colour, they might have put upon it some distinguishing mark—a bright red star, or two yellow lines, or anything similar. But they have not done so. The only conclusion I can come to is this: that (in the words of Vice Chancellor Wood) the resemblance of the colour of the label (which is much more important than the hieroglyphics on it) is due to no other reason than to mislead. While in the words of Lord Hatherly above quoted it was incumbent upon the defendants to take care that the distinguishing marks were really distinguishing, they have out of about fifty available colours chosen practically the same one that the plaintiffs had been using for twenty years". (It is right that I should say that the learned Judge in that case stated that the wrappers on the packets were of purple colour). The learned trial Judge was dealing with the same blue colour as that under consideration. In the judgment of Romer L. J., in Payton and Co., Ltd. v. Shelling Lampard and Co. (17 R. P. C. 48), at page 55, I find the following passage: -

"The plaintiffs' goods have been put comparatively recently on the market in the present get-up. This is not the case where a peculiar get-up of goods has been for a long time, for many

years, on the market so as to become identified in course of time with the plaintiffs' goods and with no others, so that that get-up almost of necessity is identified in the market or amongst. the public as representing the plaintiffs' goods".

Now as distinct from that case the present one is that of plaintiff. who has been in the market for many years in the same get-up the most striking feature of which is the blue label, that nobody appeared. in a similar get-up until 1931, when the defendants put their tobaccoon the market with a get-up, the most striking feature of which is a blue label almost to the identical shade of the plaintiffs, and that blue label is on a packet with a wrapper of practically the same colour and of exactly the same size as the plaintiffs and the label has on it black lettering. Of the many cases cited (and I have read. all of them and more) the case of Johnston and Co. v. Orr Ewing $(7 \text{ A. C. } 219)$ is most in point. The head note reads, "No trader has a right to use a trade mark so nearly resembling that of another trader, as to be calculated to mislead incautious purchasers. The use of such a trade mark may be restrained by injunction, although no purchaser has actually been misled; for the very life of a trade mark depends upon the promptitude with which it is vindicated". The present case refers to a get-up but the principle is the same. Lord. Selbourne in his judgment at page 225 says, "but although the mere appearance of these two packets could not lead anyone to mistake one of them for the other, it might easily happen that they might both be taken by natives of Aden or of India unable to read and understand the English language as equally symbolical of the plaintiffs' goods. To such persons, or at least to many of them, even if they took notice of the difference between the two labels, it might probably appear that there were only difference of ornamentation, posture, and other accessories, leaving the distinctive and characteristic symbol substantially unchanged. Such variations might not unreasonably be supposed to have been made by the owner of the plaintiffs' trade mark themselves for reasons of their own...". Lord Watson in his judgment at page 231 says: "When a prominent and substantial part of a long and well known trade mark, denoting the manufacture of a particular firm, appears as a prominent and substantial part of the new trade mark of a rival it seems reasonable to anticipate that the goods of the latter may be mistaken for, or sold as, the manufacture of the firm to which the older trade-mark belongs. The probability of that result is in this case enhanced by the circumstances that all Turkey red yarns exported from this country are sold in packages which, in size, shape and colour, have the closest resemblance to each other. The reproduction of a prominent part of another merchant's trade mark upon a new label does not per se establish that the latter was prepared by its owner with a view to deceive, by himself selling or enabling others to sell his goods as the manufacture of that other merchant. But no man, however honest his personal intentions, has a right to adopt and use so much of his rival's established trade mark as will enable any dishonest trader, into whose hands his own goods may come, to sell them as the goods of his rival". Later in his judgment His Lordship proceeded, "I do not wish to suggest that they deliberately copied the respondents' trade mark, with the intention of themselves selling their yarns as the respondents'; but I do think that in designing their own trade mark,

they did expect to derive some commercial advantage from the use of the two animals which also appeared on the respondents' ticket because of their association with that ticket ..."

I have come to the conclusion that the present case is one in which an injunction should be granted restraining the defendants from using the get-up complained of, Ex. Y. The long and exclusive use by the plaintiffs of the get-up, Ex, R., the striking feature of that get-up, being the blue label arranged as it is on a wrapper similar in colour to that of the defendants, the identical shape and size of the packets of both parties with black letternig—some of it curved—on each packet, the kind of market in which both parties are rivals in the same commodity shag tobacco, the knowledge of the defendants of the plaintiffs having the most extensive business throughout the country and of their get-up, the consequent advantage of the adoption of the particular blue colour label and the difficulty of placing a new tobacco on the market are facts which have led me to the conclusion at which I have arrived. I am of the opinion that there can have been but one motive on the part of the defendants and that was to secure "some part of the benefit of the goodwill and reputation of the plaintiffs' trade", to quote from Lord Selborne's judgment in Johnston and Co. v. Orr Ewing (supra). The injunction will be in the following form: It is hereby ordered that the defendants, their servants and agents be restrained from selling or offering for sale or disposing of any tobacco not being manufactured for or by the plaintiffs of the form of Ex. V admitted in this action to have been issued by the defendants. The prayer for an account of profits has been withdrawn at the bar. The defendants will deliver up as requested all the wrappers with labels attached as complained of in paragraph 4 of the plaint for destruction. I understand however that there are none of the labels complained of in the defendants' possession and that statement made by Counsel for the defendants, Counsel for the plaintiffs accepts. Costs to plaintiffs.