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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 ..... usiness in the manufacture and sale of diesel internal combustion engines and their parts and accessories. Ruston Hornsby (India) Ltd., a company registered in India under the Companies Act, 1956 is a subsidiary of the appellant. The respondent is a firm carrying on business in the manufacture and sale of diesel internal combustion engines and their parts. The appellant was a registered proprietor of the registered trade mark Ruston being registration No. 5120 in Class 7 in respect of internal combustion engines. Ruston and Hornsby (India) Ltd. is the registered user of the said trade mark and manufactures in India and sells in India internal combustion engines under the trade mark "RUSTON". Sometime in June, 1955 the appellant came to lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bination "RUSTAM INDIA". 3. Section 21 of the Trade Marks Act, 1940 states: "Subject to the provisions of Section 22, 25 and 26 the registration of a person in the register as proprietor of a trade mark in respect of any goods shall, give to that person the exclusive right to the use of the Trade mark in relation to those goods and, without prejudice to the generality of the foregoing provision, that right shall be deemed to be infringed by any person who, not being the proprietor of the trade mark or a registered user thereof using by way of the permitted use, uses a mark identical with it or so nearly resembling it as to be likely to deceive or cause confusion, in the course of trade, in relation to any goods in respect of which it is r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion on the trade mark, that is to say, in an infringement action, an injunction would issue as soon as it is proved that the-defendant is improperly using the plaintiff's mark. 5. The action for infringement is a statutory right. It is dependent upon the validity of the registration and subject to other restrictions laid down in Sections 30, 34 and 35 of the Act. On the other hand the gist of a passing off action is that A is not entitled to represent his goods as the goods of B but it is not necessary for to prove that A did this knowingly or with any intent to deceive. It is enough that the get-up of B's goods has become distinctive of them and that there is a probability of confusion between them and the goods of A. No case of actual d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a mark so nearly resembling the registered mark as to be likely to deceive. In an action for infringement where the defendant's trade mark is identical with the plaintiff's mark, the Court will not enquire whether the infringement is such as is likely to deceive or cause confusion. But where the alleged infringement consists of using not the exact mark on the Register, but something similar to it, the test of infringement is the same as in an action for passing off. In other words, the test as to likelihood of confusion or deception arising from similarity of marks is the same both in infringement and passing off actions. 7. In the present case the High Court has found that there is a deceptive resemblance between the word "RUSTON" and t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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