1. The appellant has been convicted by the Chief Presidency Magistrate under Section 486 of the Indian Penal Code. The first question raised by the appellant’s counsel is whether the appellant’s trade mark is a counterfeit of the complainant’s and secondly, if it is, whether the appellant has acted innocently. As to the first question, the law as to trade marks is quite clear. “No trader has a right to use a trade mark so nearly resembling that of another trade as to be calculated to mislead incautious purchasers” Johnston v. Orr Ewing (1882) 7 App. Cas. 219. On the question of such resemblance the eye is the judge. We have had the two rival soaps in this case placed before us and no doubt there are some distinguishing marks between the two ; still, upon the whole, we think that it is impossible to come to any other conclusion than that the appellant’s trade mark is an imitation of the other. The decided eases show that it is not necessary that there should be a resemblance in every case. It is sufficient if the resemblances are of such a nature as to be calculated to mislead an unwary purchaser. In appearance, the colour of both resembles. The complainant’s soap has on it impressed the words “Empress Pale” the appellant’s has ”Emperor Pale.” These are fancy words and it is a remarkable coincidence that the appellant has selected the word “Emperor” for the complainant’s “Empress.” An incautious purchaser does not scrutinize the letters with particular care and might mistake one word for the other. Then, on the complainant’s soap there is the design of a flower with the flower brand impressed on it; whereas the appellant’s has a design of two stars with the star brand impressed. There, again, it is not uncommon for unwary people looking at the two to mistake a flower for a star on a design. These coincidences could not have been accidental. Indeed, Mr. Talyarkhan, the appellant’s counsel, has with his usual fairness conceded that the evidence for the prosecution, that the appellant was aware of the complainant’s soap and trade mark when his own was first put into the market, has not been rebutted by any proof to the contrary. It is a fair inference under the circumstances that the idea of the designs was borrowed by the appellant from the complainant’s and that they were adopted with the object of imitating the complainant’s trade mark. The counterfeit is, therefore, proved.
2. But it is urged that the appellant has acted innocently and that because he sold his soap as Swadeshi and advertised it as such. Assuming that to be the case, still it does not assist the appellant. A representation that goods of the manufacture of A are those of B need not be made orally or in writing but it may be made by the manner in which the goods are made up or by the wrapper or by the name or design. The counterfeit is itself a representation and the appellant, being found to have imitated the complainant’s trade mark knowingly cannot escape the consequences merely because he sold and advertised his soap as Swadeshi. He practised fraud by means of the counterfeit article or imitation so as to enable others to practise deception on unwary purchasers. The appellant has failed to prove his innocence. The conviction and sentence are confirmed.