1980 PLP 97 (SCMR)

"I concur in the opinion that this motion should be refused with costs. No man can have any right to represent his goods as the goods of another person, but in applications of this kind it must be made out that the defendant is selling his own goods as the goods of another. Where a person is selling goods under a particular name, and another person, not having that name, is using it, it may be presum ed that he so uses it to represent the goods sold by himself as the goods of the person whose name he uses; but where the of defendant sells goods under his own name, and it happens that the plaintiff has the same name, it does not follow that the defendant is selling his goods as the goods of the plaintiff. It is a question of evidence in each case whether there is false representation or not . . . " And, as there was no false representation by the defendant, his right to carry on business under his name was upheld by the Court. Confining myself only to the leading cases on the question of the defendant's right to carry on business in his name, I would now turn to a judgment of the Court of Appeal in Massam v. Thorley's ,Cattle Food Company (14 Ch. D 748). The facts in this case were that the plaintiffs were the executors of one Joseph Thorley, deceased, who had, for many years, manufactured and sold cattle food in packets under the title of "Thorley's Food for Cattle". On Thorley's death, the plaintiffs continued his business. Meanwhile a company by the name of Thorley's Cattle Food Company was formed by other persons, which also began selling food for cattle under the name of Thorley's Food for Cattle in packets of the same size and colour as the plaintiffs. However, although this company was formed by persons who were strangers to Thorley deceased, the company employed a brother of the deceased and allotted one share to him. In these circumstances, the plaintiffs filed a suit to restrain the company from selling its products under the name of Thorley's Food for Cattle, and the Court of Appeal held that the company had fraudulently tried to pass off its goods as those of the plaintiffs', therefore, it allowed the plaintiff's appeal against the dismissal of their suit. And, here I may explain that because the defendant had given a solitary share of one shilling to the brother of Thorley deceased, the company claimed the right to trade under Thorley's name. It is not surprising that the Court of Appeal looked upon this as a sharp practice, and reversing the trial Court's judgment, it granted an injunction restraining the defendant from using the name Thorley's Food for Cattle "unless they took such precautions as would prevent purchasers from supposing that the article sold by them was manufactured at the original establishment of Joseph Thorley." As the plaintiffs did not possess any registered trade mark, the facts of this case are on all fours with those in the instant case, and it is significant that the Court of Appeal expressly rejected the prayer of the plaintiffs for prohibiting the defendant completely from using the name Thorley. A few years later, in Turton v. Turton (42 Ch. D 128) the Court of Appeal rejected the plaintiff's prayer restraining the defendant from using the same name as the plaintiff's, because both the parties happened to have the same family name and in this connection, Esher, M. R. observed at page 135 :‑ "Now it is said that the Plaintiffs have a trade name and a property in their name. I doubt about property, though they have this right that no man shall wrongfully interfere with their name. But they have no right to bay that a man may not rightly use his own name. I cannot conceive that the law is such. If the law were such, the law would be most extraordinary and, to my mind, most unjust‑to prevent a man's using his own name Therefore, upon principle, I should say it is perfectly clear that if all that a man does is to carry on the same business, and to state how he is carrying it that statement being the simple truth‑and he does nothing more with regard to the respective names, he is doing no wrong. He is doing what he has an absolute right by the law of England to do, and you cannot restrain a man from doing that which he has an absolute right by the law of England to do." I am aware that these two cases relate to a defendant's claim to use his family name, whilst the petitioner wants to use its business name. therefore, I may point out that the same view as in the cases cited was taken by Farwell, J., in Aerators. Limited v. Tollitt ((1902) 2 Ch. D 319) by Parker, J. in British Vacuum Cleaner Company, Limited v, New Vacuum Cleaner Com pany, Limited ((1907) 2 Ch. D 312) and in Burberry's case, to which I referred earlier, and the judgment of Parker, J., in Burberry's case contains an extremely useful discussion of the question whether a plaintiff can claim monopoly rights in, the use of ordinary words or names. Finally, it would be sufficient to observe that the view of Parker, J., was upheld by the Court of Appeal in Office Cleaning Services Ltd. v. Westminster Office Cleaning Associa tion ((1944) 2 All E R 269) and by the House of Lords in appeal in Once Cleaning Services, Ltd. v. Westminster Office Cleaning Association ((1963) R P C 39). Turning now to the judgments of the High Courts of the sub‑continent, as the judgment under appeal is of the Lahore High Court, may point out that in Uberoi Limited and Ganda Singh of Delhi v. The Proprietor of the Business of Uberoi and Company Kashmiri Gate, Delhi (58 1 C 709), a Division Bench of the Lahore High Court upheld the right of the defendant to carry on business in his own name even though it coincided with that of the plaintiff's. Mr. Shaikh, however, referred us to a judgment of Mulla J., in the National Bank of India v. National Bank of Indore (70 1 C 47) and I may add that‑a similar view was taken by ‑the Calcutta High Court in Oriental Government Security Life Assurance Company Ltd. v. Oriental Assurance Co. Ltd. (1 L R 40 Cal. 57Q). In both these cases the defendants were restrained from using what had become the trade name of the plaintiffs, but in both cases the plaintiffs acted with the utmost vigilance, unlike the instant case, and as I indicated earlier, there is authority for the proposition that the rule that a person is entitled to carry on business in his own name may not, in the words of Kerly, extend "to the name of a new company conducting a new business, notwithstanding that the name in dispute may be the personal name of a promoter..." Therefore, the judgments are distinguishable on the facts. It is also not necessary to go into greater detail into these older cases, because they were decided before the Trade Marks Act came into force, and I will presently show, section 26 of this Act is another hurdle in the way of the respondent in. the instant case. All the other judgments relied upon by the respondent relate to cases in which the plaintiffs were the owners of registered trade marks or to cases in which the plaintiffs used invented ‑ or fancy words in their trade marks or names. The judgments in which the plaintiffs were the owners of registered trade marks are distinguishable on the obvious ground that the owner of a registered trade mark is entitled under the Trade Marks Act to "the exclusive right to the use of" his trade mark. Next, as to words invented by a plaintiff, I do not see how any defendant can advance a bona fide claim to the use of a word invented by his rival for the purpose of identifying his goods. But, it is quite another matter when the defen dant trades under his or its own name, because a man is normally entitled to trade under his own name and the position is somewhat similar when the defendant describes his goods in terms which are a true description of those goods. This seems elementary to me. However, in view of the importance of this question, I may with advantage refer to a passage in the speech of Lord Shand in The Cellular Clothing Company Limited v. Maxton & Murray (1899 A C 326). Lord Shand observed :‑ "There is a vital distinction in cases of this class between invented or fancy words or names, or the names of individuals ... attached by a manufacturer to his goods and stamped on the articles manufactur ed, and words or names which are simply descriptive of the article manufactured or sold. The idea of an invented or fancy word used as a name is that it has no relation, and at least no direct relation, to the character or quality of the goods which are to be sold under that name . . . The word used, and attached to the manufacture, being an invented or fancy name and not descriptive, it follows that, if any other person proceeds to use that name in the sale of his goods, it is almost if not altogether impossible to avoid the inference that he is seeking to pass his goods off as the goods of the other manufacturer. A person invents or applies the term "Eureka" shirt, that seems at once to mean that you are buying a shirt made by the particular maker who is selling shirts under that fancy name. The public come to adopt the word "Eureka" as applicable to the manufacture of the particular person who began to use it and as denoting the article he is selling, and if another person employs the word in the sale of the same or a similar article, it seems to follow that he is acting in direct violation of the law that no one in selling his goods shall make such representations as will enable him to pass them off as the goods of another, so as to get the benefit of that other's reputation. A totally different principle must apply in the case of goods which are sold under a merely descriptive name. If a person employing a word or term of well‑known signification and in ordinary use though he is not able to obtain a patent for his manufacture, and although he has not got the protection of a registered trade‑mark for the goods he is proposing to sell‑is yet able to acquire the right to appropriate a Word or term in ordinary use in the English language to describe his goods, and, to shut others out from the use of this descriptive term, he would really acquire a right much more valuable than either a patent or a, trade mark ; for he and his successors in business would gain the exclusive right, not for a limited time as in the case of‑a patent, but for all time coining, to use the word as applicable to goods which' others may be desirous of manufacturing 'and are entitled to manufacture and sell as much as he is. That being so, it appears to me that the utmost difficulty should be put in the way of any one who seeks to adopt and use exclusively as his own a merely descriptive term." It would be convenient to refer now, to Halsbury's dictum that the rule that a defendant can trade under his own name "is now less favoured by the Courts." This dictum is based only on the judgment reported in Adrema Ltd. v. Adrema Werke G. m. b. H.` Ltd. (1958 R P C 323). But, this judgment, is a judgment of A Court of the first instance. Secondly, the fact of the case were very unusual. The defendant was a German Company which manufactured machines under the trade mark Adrema and the plaintiff had been its English subsidiary. Before the war the defendant had allowed the plaintiff "to acquire the entire United Kingdom goodwill in the mark "Adrema". Then, as a result of the war, all connections between the two companies were severed, but after the war the German Company tried, to sell its machines under its name therefore, the. English Company brought an action for passing off, and the ‑learned Judge granted it an injunction totally prohibiting the German Company from using the name "Adrema" although that was a part of its own name. Does this decision mean a retreat from the principle that a defendant is entitled to trade under its own name? I would answer the question in the negative, because as explained by Kerly in his Treatise on Trade Marks, the bona fides of the defendant were in doubt as it was really in the position of a vendor who was trying to use the very trade mark which it had sold. Thus, the case was of a very unusual nature, and the rule laid down in it should be confined to its peculiar facts. And, on the other hand, I respectfully agree with the view of Lord Shand that if a person appropriates a word or, term in ordinary, use in the English language to describe his goods," he cannot be permitted to acquire a monopoly to the use of that word or term at least in those cases m which the words and terms form part of the defendants name Any other view would not only operate very harshly against defendants but it would also be inconsistent with the principle contained in section 26 of the Trade Marks Act. This section reads "

26. No registration of a trade mark shall interfere with any bone fide use .by a person of his own name or that of his place of business, or of the name of the place of business, or any of his predecessors in business, or the use by any person of any bon fide description of the character or quality of his goods, not being description that would be likely to be taken as importing any such reference as is mentioned in clause (b) of section 21 or in clause of section 57." It is clear from this section that the owner of a registered trade mark can no prevent other persons from trading in their own names provide not act dishonestly in so doing. But, can the owner of an unregistered trade mark claim higher rights than the owner of a registered trade mark? In my humble opinion, there cannot be any doubt about the answer to this question, but unfortunately, the attention of the learned Judge was not drawn to this aspect of the case. However, the learned Judge rejected the plea of the petitioner that it was entitled to sell its products under its own name on the basis of judg ments reported in Valentine Meat Juice C. v. Valentine Extract Company Ltd.( (1901) 83 L T 259) in Reddaway v. Benham (1896 A C 199) and in V. Abdul Kareem Sahib v. A. Abdul Kareem Sahib (A I R 1931 Mad. 461). It is necessary, to examine these three cases in some detail, and I would begin with the Madras case. Both the plaintiff and the defendant in this case manufactured beedies and sold them under their own names, and the plaintiff (led a suit against the defendant to restrain him "from selling beedies in wrappers got up to resemble his own name". Further, as is apparent from the citation of‑ the case, the names of both the parties ware identical except for the initials of the defendant. The defendant's name was V.A.P. Abdul Karim Saheb he had first sold his beedies under this name, then according to the learned Judges, he dropped the he dropped the P and later the Saheb , adding "& CO.". Therefore, the plaintiff also sought a permanent injunction in his suit to restrain the defendant from selling his beedies under the names "Karim Beedies", The plaintiff proved that as and when he had changed the wrappers of his beedies the defendant had made corresponding changes in his wrappers. Similarly, the plaintiff showed how the defendant had dishonestly dropped the initials of his name. The trial Court, therefore, granted an injunction to restrain the defendant from selling his beedies ' wrappers which resembled the plaintiff's.. But, it refused the plaintiff's prayer for a permanent injunction to restrain the defendant from selling the beedies under his own name. Both the plaintiff and the defendant were aggrieved by this judgment, but the defendant was the first to challenge an appeal in the Madras High Court, so the plaintiff filed cross-objec tions in which he sought a permanent injunction "as regards the trade name "Karim Beedies" which the defendant equally with the plaintiff has been in the habit of using on his wrappers." Now, it is clear from the observations of the learned Judges which I quoted that they were of the view that the defendant had changed his name dishonestly. Yet they did not grant the plaintiff the injunction sought by him and dismissed his cross objections. I would emphasise here that the learned Judges could have granted an injunction on terms and, for example, directed the defendant to trade under his original name V. A. P. Abdul Karim Saheb, but as they dismissed the plaintiff's cross objections, with all respect to the learned Judge, I do not see how the ratio of this case lends any support to the respondent's claim in the instant case. I now turn to the judgment of the House of Lords in Reddaway's case. Reddaway was a manufacturer of machine belting which he began selling in 1877 under the name of Woollen Belting. Two years later, he began to call his belting as Camel Hair Belting, and according to the speech of Lord Macnaghten, it was admitted at the trial that for about fourteen years before the appellant filed his suit "no belting bad been made or sold under the description of camel hair or camel hair bel ting except by Reddaway and certain persons whom he had promptly challenged and stopped." The respondent Banham had been employed by Reddaway for about two years, but in 1891, he set up his own business of manufacturing machine belting, and like all others in the trade the belting was made largely from camel hair. But be first called his belting Arabian belting. Then he slowly started selling his goods, as Camel Hair Belting. This attracted Redday's attention in 1891 and by that time Reddaway had been selling his belting under the name Camel Hair Belting for about fourteen years. Therefore, Reddaway immediately filed a suit against the respondent in order to restrain him from selling his products under the name Camel Hair Belting, but he filed this suit on the assump tion that the expression Camel Hair Belting coined by him was an artificial expression. The defendant, on the other hand, claimed that machine belting was made principally from Camel Hair therefore, his defence was that he was entitled to sell his belting under the name Camel Hair Belting because it was a true description of the goods sold by him. Truth is sometime stranger than fiction and Reddaway who according to the judgment of the House of Lords was known throughout the world for the quality of his belting did not know that machine belting was "for the most part composed of genuine camels hair". Unfortunately, however, for the respondent, the trial was by Jury and the Jury held that the words Camel Hair Belting had acquired a, secondary meaning and were understood in the trade to mean only the machine belting manufactured by Reddaway. The Jurors were also of the opinion that the respondent had copied the appellant's trade name dishonestly. But despite this categorical finding of fraud, the trial Court only granted an injunction "restraining the defendants from continuing to use the words Camel Hair in such a manner as to deceive purchasers into the belief that they are purchasing the belting of the plaintiff's manufacture". Banham filed an appeal against the qualified injunction granted to the appellant, and the appeal was allowed because Reddaway's trade designa tion was, in the words of Lord Macnaghten `instead of being, as r everybody supposed, a fanciful term ....:.... nothing more or less than a substantially accurate description of the material of which his belting was composed." Reddaway therefore filed an appeal in the House of Lords and as the findings of the Jury on questions of fact had become a conclusive, the appeal was allowed. Now, because the House was unanimous that the words Camel Hair Belting used by Reddaway had acquired a secondary meaning and as the appeal was allowed, this judg ment has sometimes been treated as an authority for the proposition that a defendant cannot trade under his own name or under a name which is a true description of the goods sold, if these names coincide with the plaintiff's and as the plaintiff's name has acquired a secondary meaning. And, this appears to have been the view taken in the judgment under appeal. With the utmost respect, I regret my inability to agree with this view because Reddaway had not sought an injunction to prohibit the respondent absolutely from using the words "Camel Hair Belting" on his products. And, it would be convenient to quote a passage from the speech of Lord Macnaghten. After pointing out that the discovery that Camel Hair Belting was for the most part composed of genuine camels hair had come "as a revelation to Reddaway and his advisers", Lord Macnaghten observed at page 218: "The appellants concede‑they cannot indeed any longer dispute that everybody who makes belting of camel hair is entitled to describe his belting as camel hair belting provided he does so fairly. But they contend, and I think with reason, that neither Banham nor anybody else is entitled to steal Reddaway's trade under colour of imparting accurate and possibly interesting information." As Reddaway did not object to Banham using the words camel hair belting "provided he does so fairly," the House did not have to decide whether a trader can, in the words of Parker, J., "claim monopoly rights in the use .of a word or name". Nonetheless, Lord Morris allowed the appeal with some reluctance and observed; "I find myself coerced, however, to a conclusion against the respondents by the finding of the jury... That finding establishes as a fact that the use of the words "camel hair belting" simpliciter deceives purchasers, and it becomes necessary for the respondents to remove that false impression so made on the public. That, to my mind, is obviously done when the respondents put prominently and in a conspicuous place on the article the statement that it was camel hair belting manufactured by themselves." Neither the Lord Chancellor, Lord Halsbury, nor Lord Macnaghten were so explicit in their views, but both the noble Lords expressly approved of the view of Turner, L. J., in Burgess's case, and according to Turner, L. J.,, a defendant was entitled to trade in his own name provided he did not act dishonestly. However, Lord Herschell dealt with the question at some length and observed at page 210: "The name of a person, or words forming part of the common stock of language, may become so far associated with the goods of a particular maker that it is capable of proof' that the use of them by themselves without explanation or qualification by another manufacturer would deceive a purchaser into the belief that he was getting the goods of A. When he was really getting the goods of B." After explaining how words could acquire a secondary meaning in a trade, Lord Herschell further observed "In a case of this description the mere proof by the plaintiff that the defendant was using a name, word, or device which he had adopted to distinguish his goods would not entitle him to any relief. He could only obtain it by proving further that the defen dant was using it under such circumstances or in such marine as to put off his goods as the goods of the plaintiff. It he could succeed to proving this I think he would, on well‑established principles‑ be entitled to an injunction." Finally, as to the right of a trader to trade under his own name Lord Herschell observed at page 214: "What right, it was asked, can an individual have to restrain another from using a common English word because he has chosen to employ it as his trade‑mark? I answer he has no such right; but he has a right to insist that it shall not be used without explanation or qualification if such a use would be an instrument of fraud." Clearly, therefore, there is nothing in Reddaway's case to support the view that a trader can, by long user, acquire a monopoly to words "form ing part of the common stock of language", and on the other hand, all the noble Lords clarified that a person could trade under his own name provided he took reasonable steps to ensure that his goods were not con fused by the public with the goods of another trader operating in the same field under the same name. I now turn to the judgment of the Master of the Rolls in the Valentine Meat Juice Company v. The Valentine Extract Company (16TLR522); and at the outset I would observe that it fully supports the view taken to the judgment under appeal. The plaintiffs in this case, an American company, had manufactured and sold meat juices in bottles in England for many years under names and titles of which, according to the head note of the case, the name "Valentine" or Valentine's" was an essential part at the turn of the century, an English man by the name of Valentine also entered the business of manufacturing meat juices. He formed a one‑man company which was registered under his own name and as he had also obtained registration of the word "Valentine" as his trade mark, he sold his meat juices in capsules in boxes bearing labels describing them as "Valentine's Valtine Meat Globules". The plaintiffs, therefore, brought an action against them but they ‑did not complain that the defendants had got up their goods so as to resemble the plaintiffs', but only that the defendants. had made use of the name "Valentine" in such away as to deceive the public into the belief that the goods sold‑‑by‑them wire manu factured by the plaintiffs." After the action was filed, in order to further accommodate the plaintiffs, the defendants even agreed to drop the word "Valentine" and the description of the labels on their boxes was altered to " Valtine Meat Globules". Therefore, in view of the observations in Reddaway case, the plaintiffs' action was only fit to be dismissed and it was dismissed. But the plaintiffs filed an appeal which ;vas allowed by the Court of Appeal strangely enough on the basis of Reddaway's judgment. I say strangely enough, because the plaintiffs sold juice in bottles whilst the defendants sold their products in capsules packed in boxes. Apart from the difference in the names under which the plaintiffs and the defendants traded the difference between a liquid and a capsule is rather obvious, but the Court of Appeal was of the view that the use by the defendants of the words "Valentine" or "Valentine's" was likely to deceive the public. With all respect to the learned Judges, the name "Valentine" was the name of the defendants. And, as a person is, prima facie, entitled to trade under his own name, the law has to strike a balance between the rights of the plaintiff and of the defendant. Therefore, Lord Herschell had expressly clarified in his speech that a person could trade under his own name, provided he acted honestly. And, as the defendants had proved their honesty beyond doubt by even dropping their name "Valentine" in my humble opinion, the view taken by the Court of Appeal is contrary to the observations of the House of Lords in Reddaway's case. But I need not dilate on this aspect of the case, because of section 26 of the Trade Marks Act to which I referred earlier. Nonetheless, there is one aspect of this judgment which I am completely unable to understand. The defen dants were prohibited even from using the word "Valtine". As this word was their registered trade mark, the judgment means that the owner of a registered trade mark can be prohibited from using his registered trade mark at the instance of a plaintiff, who does not own any registered trade mark. With respect in my humble opinion, this proposition is not good law and I would not follow it. In any event, the ratio of this case is against the express provisions of the Trade Marks Act and the equity enshrined in section 26 of that Act. It is also not irrelevant to point out here that the view taken by the Court of Appeal in Valentine's case is inconsistent with the view taken by the Court nearly 50 years later in. the Office Cleaning Service's case, a judgment which was upheld by the House of Lords. Therefore, although there have been periods in which the law was in a state of uncertainty, it is more clear that except perhaps in‑ the case of newly‑incorporated companies the law confers a right on a person to trade under his own name subject to the condition that he does not act dishonestly. As observed more than a hundred and fifty years ago by Turner, L. J., in Burgess's case "where the defendant sells goods under his own name and it happening that the plaintiff has the same name, it does not follow that the defendant is selling his goods as the goods of the plaintiffs. It is a question of evidence in each case whether there is a false representation or not...": The claim of the parties in this petition has, therefore, to be decided in the light of this observation, subject to the further principle that delay cans be fatal to a claim for an interim injunction. Now, the word "National" to the use of which the respondent objects, in the instant case, is part of the petitioner's trade name, there fore, on the law as it stands, the respondent cannot make out a prima facie case to prohibit the petitioner altogether from using the word "National" on its fans, but subject to the question of delay, it would be entitled to a qualified injunction if it can show, prima facie, that the petitioner was using the word "National" on its fans in a manner likely to misguide the public. And, as the High Court, which was the first appellate Court, held that the manner in which the petitioner had splashed the word "National" on the labels of its fans from 1967 was dishonest, the respondent has made out a prima facie case for a qualified injunction. Next as the question of delay it was not disputed before us that the petitioner was using the word "National" on its products from 1957, whilst the respondent filed its suit in 1969, after a delay of more that ten years. Therefore, its claim for an interim injunction to prohibit the petitioner from trading under its own name is clearly barred by delay and on this ground also the injunction granted by the High Court has to be modified. Therefore Mr. Shaikh submitted that in any event the petitioner should not be permitted to sell its fans in the manner in which it was doing after 1967 and in support of this plea, he relied on the finding of the High Court against the petitioner. In view of this finding, learned counsel's submission was that even during the pendency of the suit, the petitioner should not be permitted to sell its fans in a manner which was likely to deceive or confuse the public. Now as I explained, although a defendant should be permitted to trade under its own name, it should not be permitted to take any steps which would enable it to pass off its own goods as those of its rivals. But this means that the respondent has made out a prima facie case for a qualified injunction. And, on the other hand, it cannot be said that its delay of two years in filing its suit was so gross as to debar it from seeking interim relief. However, before settling the terms of the interim injunction to which the respondent is entitled, I would refer to one other submission advanced by Mr. Saleem. This was that as the appeal was against an interlocutory order, the learned Judge should have decided it on a tentative assessment of the case, but instead he had given a conclusive finding on the questions argued before him, and thereby prejudged the case against the petitioner in the trial Court. This is a familiar grievance in petitions against interlocutory orders, but petitioners, who challenge interlocutory orders, never seem to remember that Courts have to apply the law to the facts of the case, even in appeals against interlocutory orders. Therefore, in order to decide the appeal before him, the learned Judge had to decide the law and then apply it to the facts of the case. This is precisely what he did, and this is what appellate Courts do in every appeal. But, according to Mr. Saleem, as an interlocutory appeal is heard before the suit out of which it arises can be decided, the learned Judge had erred in giving conclusive findings on the questions argued before him. The argument is partly correct. Because an interlocutory appeal is heard be fore the suit out of which it arises can be decided, appellate Courts are reluctant to give conclusive findings in such appeals, but I agree that they should not give conclusive findings on questions which have to be decided by evidence. This is because an appellate Court does not have the benefit of the evidence which has to be recorded in the suit under appeal, and as it does not have the benefit of this evidence, it cannot give a conclusive finding on any issue which turns on evidence, and it should also not give such a finding because if it dial so, it would prejudge the trial Court's appreciation of evidence. But the position is different when an appellate Court is called upon to decide questions of law, because the law has to be gathered from the statutes enacted by the Legislature and from the judg ments of the superior Courts. Secondly, it is the duty of an appellate Court to correct the error of the lower Court and if an appellate Court fails to correct the errors of a lower Court, it will only prolong frivolous litigation. This is all the more so in the case of errors of law, because such errors may affect other cases also. But, even Mr. Saleem did not contend that an appellate Court could give a tentative finding on a question of law, and if an appellate Court corrects an error of law by the lower Court, its finding is bound to react against the case either of the plaintiff or of the defendant in the trial Court, and that is why as I pointed out earlier, an appellate Court is reluctant to correct the lower Court's error. But, this cannot possibly relieve the appellate Court of its obligation to correct the lower Court's error when it is necessary to do so in order to decide the appeal. Therefore, the question is of the appellate Court's discretion and if, for example an appeal against an interlocutory order is pressed or resisted only on legal grounds it would be ridiculous to contend that the appellate Court could not state the correct law, because that might prejudge the case of the parties in the trial Court. I now turn to the instant case. The first of the two questions before the High Court was of the similarity between the marks of the two parties, and the High Court decided this question against the petitioner on the basis of its examination of the marks of the two parties, and presumably on the basis of the averments of the parties in their affidavits: But as submitted by learned counsel, this question can be decided finally only in the light of the evidence which the parties are entitled to produce in the trial Court. Therefore, learned counsel's further submission was that the learned Judge could only give a tentative finding on this question of similarity of the marks. That is correct, and learned counsel's grievance appeared to be that the learned Judge had not expressly stated that his finding against the petitioner was tentative. It is true that the learned Judge has not said in terms that his finding against the petitioner was tentative, but it was hardly necessary for him to say so, because the finding of an appellate Court on a question on which evidence is still to be recorded in the trial Court can only be of a tentative nature, and the learned Judge was entitled to assume that the trial Court, would be aware of the correct legal position. In any event, I would clarify that the learned District Judge will decide the questions before him according to the evidence produced by the parties and will not be influenced by the observations either of this Court or of the High Court' on questions on which the parties produce evidence before him. The other question before the High Court was whether the respondent was entitled to prohibit the petitioner from using the word "National" on its products, and, as I explained, the respondent can succeed only if it is entitled to a monopoly of the use of the word "National" because it had commenced using it before the petitioner. This question is a pure question of law and if the respondent's trade mark had been registered, all the Courts would have been bound by section 26 of the Trade Marks Act. As the respondent's claim does not in terms fall under this section, it has to be decided in the light of the case law. But, this does not alter the fact that the appeal turns on a pure question of law. It was no doubt unfortunate that the decision of this question was bound to affect the fate of the suit in the trial Court. But, as the appeal was pressed almost exclusively on this legal plea, the learned Judge had no option but to decide it. That the view taken by him was erroneous and had to be corrected by us in another matter, but no exception can be taken to the decision of the learned Judge to give a finding on the question on which the appellant had pressed his appeal. I now turn to the order we passed after hearing arguments. Pending the hearing of the respondent's suit in the District Court, the petitioner is, permitted to sell its products under its name "National Electric Fans Manufacturers," and this should be in the same size and design as appears at page 91 of the Court file and marked as Annexure "A". The petitioner shall also keep monthly accounts of its production and sales, as directed in this Court's order of 23rd July 1973. It shall also supply a copy of its accounts to the Registrar of this Court by the 10th of each month, which the respondent will be entitled to inspect. The judgment of the High Court is set aside and the appeal is disposed of in terms of this order. However, as success is evenly divided between the parties, we do not make any order as to costs. Finally, before parting with this order, I am constrained to observe that we were shocked and appalled to learn that the respondent had not yet completed his evidence in the trial Court although it had filed its suit more than ten years ago. This delay is scandalous and we hope that the learned District Judge will decide the suit within six months, by hearing it from day to day, if necessary. Order accordingly.