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7. It appears that in India the rules of the common law of England applicable to trade-marks should be followed by the Courts in this country as being rules of justice, equity and good conscience. Even in England, where provision is made by statute law for the registration of trade-marks, the Courts also give protection to unregistered trade-marks:

It is well settled that, if the use by the defendant upon his goods of an unregistered trade-mark belonging to the plaintiff is calculated to pass off or cause to be passed off the defendant's goods as the goods of the plaintiff, an injunction may be granted to restrain such use, and this whether the use be deliberately fraudulent and intended by the defendant to be deceptive, or not. (Kerly on Trade-marks, Edn. 6, p. 12). The test of infringement laid down in all the cases is that the defendant's acts shall be calculated to pass off goods as the plaintiff's which are not his. (Kerly, p. 34). The question which has always been regarded as the test of infringement is, 'will the use of the trade-mark I by the defendant lead purchasers to mistake his goods for those of the plaintiff?' (Kerly, p. 36).

21. The case of Hargreave v. Freeman (1891) 3 Ch. D. 39, seems at first sight to favour the defendant's contention. In that case, the finding was that there was no infringement of a registered trade-mark. The plaintiff had registered a trade-mark for all classes of tobacco whether manufactured or unmanufactured, but his registered device consisted of a shield with three crowns and the word "Mixture" underneath. Since registration the plaintiff had used this trade-mark solely on packages containing cut tobacco. The defendant had used a trade-mark consisting of a shield with three crowns, without the word "Mixture" underneath, on cigar boxes. It was held that the whole trade-mark including the word "Mixture" was quite inapplicable to cigars and it had not been copied by the defendant and although the plaintiff used part of his registered trade-mark, namely, the shield with three crowns without the word "Mixture" on cigars which he also sold, he had not registered that mark of three crowns only. The learned Judge observed that the plaintiff was really attempting to sue upon an unregistered trade-mark which he could not do "by reason of the Act of Parliament." That case was not an action for passing off nor is there any question of this suit being barred by an Act of Parliament and I agree with the remark of Wallis, J., in the British American Tobacco Company case, that the ruling is distinguishable.