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TMI Blog1969 (9) TMI 110X X X X Extracts X X X X X X X X Extracts X X X X ..... he fact that the word 'INDIA' is added to the respondent's trade mark is of no consequence and the appellant is entitled to succeed in its action for infringement of its trade mark. Appeal should be allowed and the appellant should be granted a decree restraining the respondents by a permanent injunction from infringing the plaintiff's trade mark "RUSTON" and from using it in connection with the engines machinery and accessories manufactured and sold by it under the trade mark of "RUSTAM INDIA". The appellant is also entitled to an injunction restraining the respondent and its agents from selling or advertising for sale of engines, machinery or accessories under the name of "RUSTAM" or "RUSTAM INDIA". The appellant is also granted a decr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant wrote through its attorneys a letter to the respondent and called upon it to desist from using the trade mark "RUSTAM" on its engines as it was an infringement of the registered trade mark "RUSTON". The defendant replied that "RUSTAM" was not an infringement of "RUSTON" as the words "RUSTAM INDIA" was used. On February 17. 1956 the appellant instituted a suit praying for a permanent injunction restraining the respondent and its agents from infringing the trade mark "RUSTON". On January 3, 1958 the Additional District Judge, Meerut, dismissed the suit holding that there was no visual or phonetic similarity between "RUSTON" and "RUSTAM". The appellant took the matter in appeal in the Allahabad High Court. By its judgment dated November 23 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ort a reference to some person having the right either as a proprietor or as registered user to use the trade mark or to goods with 'which such a person as aforesaid is connected in the course of trade. 4. The distinction between an infringement action and a passing off action is important. Apart from the question as to the nature of trade mark the issue in an infringement action is quite different from the issue in a passing off action. In a passing off action the issue is as follows : Is the defendant selling goods so marked as to be designed or calculated to lead purchasers to believe that they are the plantiff's goods ? But in an infringement action the issue is as follows : Is the defendant using a mark which is the same as or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In equity, however, Lord Cottenham L.C. in Millington v. Fox, 3 My Cr. 338 held that it was immaterial whether the defendant had been fraudulent or not in using the plaintiff's trade mark and granted an injunction accordingly. The common law courts, however, adhered to their view that fraud was necessary until the Judicature Acts, by fusing law and equity, gave the equitable rule the victory over the common law rule. 6. The two actions, however, are closely similar in some respects. As was observed by the Master of the Rolls in Saville Perfumery Ltd. v. June Perfect Ltd. 58 R.P.C. 147 at 161. The Statute law relating to infringement of trade marks is based on the same fundamental idea as the law relating to passing-off. But it differs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The respondent has not brought an appeal against the judgment of the High Court on this point and it is, therefore, not open to him to challenge that finding. If the respondent's trade mark is deceptively similar o that of the appellant the fact that the word 'INDIA' is added to the respondent's trade mark is of no consequence and the appellant is entitled to succeed in its action for infringement of its trade mark. 8. We are accordingly of the opinion that this appeal should be allowed and the appellant should be granted a decree restraining the respondents by a permanent injunction from infringing the plaintiff's trade mark "RUSTON" and from using it in connection with the engines machinery and accessories manufactured and sold by it un ..... X X X X Extracts X X X X X X X X Extracts X X X X
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