B. K. MEHTA, J. ( 1 ) THIS appeal at the instance of the original plaintiff Company arises out of passing off action must obviously be allowed for the reasons stated herein. ( 2 ) A few facts need be noticed in order to appreciate the rival contentions urged in this appeal by the learned Advocates of the parties hereto. ( 3 ) IN or about 1922 A. D. there was a firm carrying on business under the name and style of Bharat Flooring Tiles Company which was manufacturing and selling tiles under the trade name Bharat Tiles. The said firm. it is claimed by the plaintiff Company. had a large scale business and in the course of time its goods acquired a name in the trade. Somewhere in June 1940 the said firm entered into an agreement with the plaintiff Company whereby it was agreed by and between the parties that the firm would sell and the Company would purchase the lands. buildings furniture fixtures stock in trade of the business. together with the goodwill and all the trade marks connected therewith for a total sum of Rs. 9 92 400 for which the Company will allot the shares to the firm. The plaintiff Company thereafter in pursuance of the said agreement of assignment took over the lands buildings and the business of firm and carried on the manufacturing activity in the factory at Bombay. The objects of the plaintiff Company inter alia. as described in its Memorandum of Association are to manufacture and sell cement and marble mosiac tiles and terrazo tiles and slabs of all kinds for floors as well as stair cases The plaintiff Company claims that in pursuance of the said agreement of assignment. it acquired a proprietary interest in the trade name and mark of Bharat Tiles and throughout the length and breadth of the Company the business of the plaintiff Company is advertised and known as Bharat Tiles and in the trading circles in particular and the public in general the trade name Bharat Tiles is associated with the goods of the plaintiff Company. In about January 1968 the plaintiff Company came to learn through their licensees one Bharat Bobbing Pvt. Ltd. which was holding a licence from the plaintiff Company to manufacture and sell the mosaic and terrazo tiles under the trade name Bharat or Bharat Tiles in the city of Ahmedabad and the territory within the radius of 150 miles thereof that the respondent firm which was doing the business under the name and style of Bharat Tiles Manufacturing Company was passing off their goods so as to confuse or deceive the public. The plaintiff Company therefore by its letter of February 22 1968 called upon the respondent firm to desist from carrying on business in the manner in which they did and from using their trade mark Bharat Tiles for their products. The respondent firm however by its letter of March 4 1968 refused to comply with the demand made by the plaintiff Company and contended that their trade mark was B. T. C and they were carrying on business of manufacturing and selling their tiles under the same name of mark and that the trade mark of the plaintiff-Company to wit Bharat was so distinct that there was no likelihood of any confusion in the minds of the people. Some correspondence ensued thereafter between the parties reiterating their respective stands. The correspondence rested with the notice issued by the plaintiff Company on May 8 1968 calling upon the respon dent firm to desist from carrying on their business so as to pass off their goods as if they were the goods of the plaintiff Company. ( 4 ) SINCE the respondent firm failed to comply with the demand made in the notice and maintained its original stand in their letter of May 22 1968 in reply to the aforesaid notice the plaintiff Company was constrained to file the present suit in the Court of Second Extra Assistant Judge at Baroda being Regular Civil Suit No. 11 of 1968 for perpetual injunction restraining the respondent firm from using the trade name Bharat Tiles as part of their business so as to pass off their goods as the goods of the plaintiff Company and for recovery of Rs. 1000/ or any other sum as may be determined by the Court by way of damages and also enjoining the respondent firm to deliver to the plaintiff Company for destruction all dies stamps literature. 1000/ or any other sum as may be determined by the Court by way of damages and also enjoining the respondent firm to deliver to the plaintiff Company for destruction all dies stamps literature. boards sign boards and all other things bearing the words Bharat Tiles thereon. ( 5 ) THE suit was registered by the respondent firm contending. inter alia. that they have adopted a distinctive trade mark B. T. C. for identifying their goods so as to distinguish them from those of others and the said trade mark was imprinted on each and every the manufactured by them and they were not passing off their goods under the trade name of the plaintiff viz. Bharat Tiles. ( 6 ) ON the aforesaid pleadings the learned Second Extra Assistant Judge. Baroda raised as many as 16 issues. on appreciation of the evidence oral as well as documentary adduced by the rival Parties the learned Assistant Judge held that the plaintiff Company took over the business from its predecessor firm viz. Bharat Flooring Tiles Co. and that the trade name Bharat Tiles is associated in the minds of the traders and architects in particular and public in general with the goods of the plaintiff Company. He also reached the conclusion that the respondent firm used the trade name Bharat Tiles in relation to their goods and on the letter heads. sign boards advertisements in news papers etc. Inspite of his findings on these two issues namely issues Nos. 6 and 8 in favour of the plaintiff Company he surprisingly held that the trade mark under which the defendant firm carried on the business was B. T. C. and. therefore. it was so distinct that there cannot be any confusion or deceit in the minds of the traders and architects in particular or the public at large in general inasmuch as the plaintiff Company has failed to prove by any cogent evidence that any person was deceived or that the respondent firm was representing that their goods were the goods of the plaintiff Company and also having regard to the practice of the consumers to purchase tiles through architects and engineers who would not be in any case be deceived or confused. the plaintiff Company was not entitled to the relief of injunction as prayed for. He therefore by his judgment and order of September 13 1973 dismissed the suit. the plaintiff Company was not entitled to the relief of injunction as prayed for. He therefore by his judgment and order of September 13 1973 dismissed the suit. It is this judgment and order which is the subject matter of this first appeal before me. ( 7 ) AN elaborate argument has been advanced on both the sides at the time of hearing of this appeal. A number of propositions has been canvassed in support of which a large number of authorities have also been cited. Before I deal with the rival contentions urged by the learned Advocates of the parties hereto it would be necessary to shortly advert to the pleadings of the parties so as to appreciate the contentions urged on behalf of the parties in proper perspective. It has been averred in para 3 4 and 7 of the plaint as under:in or about January 1940 the plaintiffs Company was incorporated and the whole of the business of Bharat Tiles Company was assigned to the plaintiffs since then the plaintiffs have been manufacturing and selling in India cement and or marble mosaic or terrazo tiles and slabs of all kinds for floors as well as stair cases and other purposes tiles under the trade name and mark Bharat Tiles and the same has been advertised extensively throughout India. The said trade name and mark Bharat Tiles is associated by the public and traders and architects with the goods of the plaintiffs. 4 In or about January 1968 the plaintiffs came to learn that the defendants were doing business in Baroda under the name of Bharat Tiles Manufacturing Co. and were selling cement marble mosaic tiles under the name of Bharat Tiles. The trade name and mark Bharat Tiles is used in relation to their goods by the defendants on their letter heads sign boards in advertisements in newspapers and in other ways. 5 6 7 The plaintiffs submit that by the use of the words Bharat Tiles as part of the defendants name and in advertisements the defendants are passing off and/or are likely to pass off their goods and business as the goods and business of the plaintiffs ( 8 ) THE contention of the respondent firm does not appear to be clear and unequivocal. It is more or less a case of denial. It is more or less a case of denial. However in order to get through the real plea which they have raised in their defence I set hereunder paragraph 11 and part of paragraph 17 so as to appreciate the contentions which have been pressed on behalf of the respondent firm by their learned Advocate. It is stated in paragraph 11- 11 What the plaintiffs call trade mark or trade name is nothing but a mono- gram. Nobody has proprietary rights in such monogram or socalled trade name or mark. Apart from this the monogram or the names are quite different in both the cases. The monogram of the defendant is B. T. C. while the monogram or the name used by the plaintiffs according to him is Bharat. In the business of tiles names are written at the back of each tile and what is important in tiles is not back but front which attracts the customers. (Emphasis supplied by me) in paragraph 17 it has been inter alia stated as under:17 defendant states that for identifying his goods in the trade he has adopted a distinctive trade mark BTC to distinquish his goods from those of others and the said mark which has been pointed out from his trading style has been and is being promimently used and imprinted on each and every tiles piece he manufactures and sells and the allocation that the defendant has been manufac turing and selling and advertising his tiles under the name Bharat as a trade mark is absolutely false. In paragraph 37 of the written statement it has been contended as under:37 In any case the defendants submit that the word Bharat being a geographical word plaintiffs cannot acquire any right to the use of the said word. Even when such a name cannot be legally registered either under the Trade Mark Act or Trade and Merchandise Marks Act the plaintiff cannot base his suit in connection with the alleged user of the said name or word ( 9 ) IT is in this context therefore that I have to deal with the contentions which have been urged by the rival sides. Mr. G. N. Desai learned Advocate appearing for the appellant Company urged that the learned Assistant Judge was clearly in error on the matter of principle and authority when he reached the conclusion that since the two marks viz. Mr. G. N. Desai learned Advocate appearing for the appellant Company urged that the learned Assistant Judge was clearly in error on the matter of principle and authority when he reached the conclusion that since the two marks viz. Bharat and BTC were distinct the plaintiffs claim for rule of injunction cannot succeed because there would be no cause at all for confusion or deceit. In submission of Mr. Desai the real test in such passing off action is whether the aggrieved party is likely to be exposed to any inconvenience by the fact of the rival party carrying on business substantially under the same name or under the same and/or similar trade mark. The proof of actual passing off is never considered to be a condition precedent to the relief of injunction or the damages in such cases and once the plaintiff has successfully established that he has got a proprietary interest in the trade mark or in the name of the business the use by the defendant of similar name of the business or the trade mark which would cause a confusion about the goods of the rival business would be a sufficient proof of the tangible risk of damages which would entitle the plaintiff to claim injunction or recover damages from the party in wrong. ( 10 ) MR. Desai made a serious grievance about the learned Assistant Judges final conclusion denying the relief of injunction to the plaintiff company inspite of his finding on appreciation of the evidence that in the public as well as amongst the traders and architects the trade mark Bharat Tiles is associated with the goods of the plaintiff and that the defendant firm used the same trade name and mark in relation to their goods. On these findings according to Mr. Desai the conclusion was inescapable that there is not only likelihood of a certain possibility of confusion if not deceit in the public mind about the rival business but would be a tangible proof of damage which must entitle the plaintiff company to the reliefs which it has asked for. ( 11 ) THESE contentions have sought to be repelled by Mr. ( 11 ) THESE contentions have sought to be repelled by Mr. M. C. Shah learned Advocate for the respondent firm that the business names of the plaintiff Company as well as of the respondent firm were so distinct that there were no chances of any confusion either amongst the traders archi tects and engineers or in the minds of the public at large. In submission of Mr. Shah the plaintiff company has not been able to establish that the goodwill was attached to the goods or the business of the plaintiff company since for all these years round the plaintiff company was virtually in a position of a monopolist inasmuch as till 1960 there were no manufacturers of mosaic and other tiles in the field in this part of the country. He therefore urged that the goods of the plaintiff company cannot have been said to have acquired any trade name which would entitle them to restrict the other manufacturers from dealing in the same name and style. He also submitted that the fact of absence of the provision for quality control in the agreement of licence given to M/s Bharat Bobbing Pvt. Ltd. negatived the plaintiffs claim for proprietary interest in the trade name. According to Mr. Shah the goods of the plaintiff lost the distinctive mark if any since the plaintiff company admittedly permitted deception by giving licences to the various parties in different parts of the country. ( 12 ) WHAT then are the relevant principles which the Court should bear in mind in passing off action like the present one. The principles are well known and settled by the authorities. The name under which a business trades will almost always be a trade mark and it is always considered difficult if not impossible to distinquish between the trading business and a trade name (vide Reuter (R. J.) Co. v. Muhlens (1958) 70 R. P. C. 235 ). It is no doubt true that where the trade name of an individual businessman is geographically descriptive the mere fact of adoption of the same or similar geographically descriptive trade name would not by itself establish a cause for the relief in a passing off action. v. Muhlens (1958) 70 R. P. C. 235 ). It is no doubt true that where the trade name of an individual businessman is geographically descriptive the mere fact of adoption of the same or similar geographically descriptive trade name would not by itself establish a cause for the relief in a passing off action. The aggrieved party has to prove as in any other passing off action that the use by the rival party of his trading style is calculated to lead to the belief that the business of the rival party is the business of the aggrieved party (see Office Cleaning Service v. Westiminster Window and General Cleaners (1946) 63 R. P. C. 39 at p. 42 ). Merely because a trade name is geographically descriptive it cannot be urged successfully that the proprietary of that trade name is not entitled to succeed in a passing off action provided he is able to establish the requisite grounds of deceit by the use of similar name though it may be a relevant consideration when an application for registration is made under sec. 9 of the Trade and Mercandis Marks Act 1958 It is equally significant to note that the name of a business will acquire a goodwill in course of time and the Courts always protect them. A passing-off action would certainly lie at he instance of a business man if his rival carries on his business in the name which is calculated to deceive or which may divert the business from the plaintiff to the defendant or it may occasion a confusion between the two businesses (vide Daimler Motor Car Co. (1904) Ltd. v. London Daimler Co. Ltd. (1907) 24 R. P. C. 379 ). ( 13 ) THE crux of the problem in passing off action of business or goods is that: Is a name so nearly resembling the name of another firm us to be likely to deceive ? And that question is to be determined by the Court. ( 14 ) IN The North Cheshire and Manchester Brewery Company Limited v. The Manchester Brewery Company Limited (1899) Appeal Cases 83 Earl of Halsbury L. C. posed the crux of this problem in these terms:. . BUT the truth is that when one comes to sea what the real question is it is in a single sentence. ( 14 ) IN The North Cheshire and Manchester Brewery Company Limited v. The Manchester Brewery Company Limited (1899) Appeal Cases 83 Earl of Halsbury L. C. posed the crux of this problem in these terms:. . BUT the truth is that when one comes to sea what the real question is it is in a single sentence. Is this name so nearly resembling that the name of another firm as to be likely to deceive ? That is a question upon which evidence of course might be given as to whether or not there was another brewery either in the one place or in the other or whether there were several breweries nearly resembling it in name; what the state of the trade was and whether there was any trade name: all those are matters which are proper to be dealt with upon evidence; but upon the one question which your Lordships have to decide whether the one name is so nearly resembling another as to be calculated to deceive I am of opinion that no witness would be entitled to say that and for this reason: that that is the very question which your Lordships have to decide. When I see that in the name of the appellant company there is literally and positively the same name as that of the rival company as I will call it and that it is only prevented from being identical in name by having another name associated with it I should think myself that the inevitable result would be that which appears to have happened that any one who saw the two names together would arrive at the conclusion without any doubt at all that the two companies. both with well known names both in the particular neighbourhood with which we are dealing. had been amalgamated. both with well known names both in the particular neighbourhood with which we are dealing. had been amalgamated. ( 15 ) THE Court of Appeal in Ouvah Ceylon Estates Ltd. v. Uva Ceylon Rubber Estates Ltd. (1910) 27 R. P. C. 753 adopted this test evolved by Earl of Halsbury L. C. in North Cheshires case (supra) where the company the Ouvah Ceylon Estates Ltd. incorporated in August 1896 for purposes of taking over an older coffee growing business situated in the province of Ouvah which was also spelt as Uva changed its name into Ouvah Celon Estates Ltd. in June 1907 Uva Ceylon Rubber Estates Ltd. was incorporated in April 1910 and its main object was to acquire and develop a rubber estate in the province of Ouvah. The first company viz. Ouvah Ceylon Estates Ltd. applied to the Court by motion to restrain the defendant company Uva Ceylon Rubber Estates Ltd. from using or carrying on business under the name style or title of the defendant company or any name or style or title which included the plaintiff companys name or so nearly resembled the same as to be calculated to deceive the public or induce the belief that the business carried on by the defendant company was the same as the business carried on by the plaintiff company. In that context Cozens Hardy M. R. referred to the statement of law made by Lord Watson in North Cheshire Companys case as an accurate statement of law which was summarised in the following terms:what appears to me to be perfectly plain is this that in the meantime the respondent company are exposed to every possible inconvenience which can arise to their trade from the fact of a rival company starting afresh in the same trade in the same locality and under substantially the same name with themselves. Farwell L. J. in his concurrent opinion indicated the relevant consideration in such actions in the following terms:. . . . The first duty of the Court in such a case appears to me to be to look at the words and see whether res ipsa loquitur; in my opinion it does. . . . . Mr. Farwell L. J. in his concurrent opinion indicated the relevant consideration in such actions in the following terms:. . . . The first duty of the Court in such a case appears to me to be to look at the words and see whether res ipsa loquitur; in my opinion it does. . . . . Mr. Hughes appeared to think that it was of no consequence to the plaintiff company whether its reputation was or was not affected by dealings in the same market by a company of the same name; in fact he was driven to say that his argument would apply to a company with a name identical with that of the plaintiff company. I fail myself to understand why the reputation of a company is not as valuable as the reputation of an individual in matters of busi ness. Companies require to borrow money; Companies issue debentures; Companies go to their bankers for facilities: and their reputation is a most material concern of theirs. That argument appears to me to be quite hopeless. Mr. Walters argument if I followed him was this:be it observed that this particular growing trade in rubber is of somewhat recent development and inasmuch as in that trade as at present carried on in the market sales are effected by marks names have nothing to do with it. But a mark independent of an owner is to me at least unthinkable in law. I do not know what it means. The mark represents the goods of the owner. The owner is interested in that. These are the only two reasons which have been advanced to dissipate that prima facie impression which my mind has received from reading the two title Ouvah Ceylon Estates Ld and Uva Ceylon Rubber Estates Ltd. The mere interposition of the name of the article in which both Companies alike deal appears to me to make no difference whatever and to be merely colourable. I think the names are practically identical or so identical as to be calculated to deceive. ( 16 ) IN Brestian v. Try (1958) R. P. C. 161 a similar dispute between two ladies Hairdressers concerning the right to use the name Charles of London in relation to their respective business arose before the Court of Appeal. I think the names are practically identical or so identical as to be calculated to deceive. ( 16 ) IN Brestian v. Try (1958) R. P. C. 161 a similar dispute between two ladies Hairdressers concerning the right to use the name Charles of London in relation to their respective business arose before the Court of Appeal. Both the parties to the action carried on business as Ladies Hairdressers under the trading name Charles of London Mr. Karl Brestian the plaintiff having branches in London Wambley and Brighton carried on his business under wholly owned private Company Maison Charles Limited and the defendant Mr. Charles Try carried on business in Tronbridge under his wholly owned private Company Charles of London (Coiffeur) Ltd. The plaintiffs use of the name was added from 1952 while of the defendant was from 1955. Danckwerts J. held that there was a certain amount of justified apprehension of potential customers of the plaintiff being diverted to defendant and therefore granted injunction restraining the defendant from using the name Charles of London. The defendant carried the matter before the Court of Appeal. Jenkins L. J. in his opinion stated the law applicable in action of such kinds in the following terms:the law applicable in an action of this kind is not I apprehend really open to doubt but it was the subject of some discussion in the course of the hearing and perhapes I should briefly deal with it before passing to a further examination of the facts. In an action such as this the plaintiff in order to succeed must show first that he has a proprietary interest in the name or perhaps it is more accurate to say in the goodwill attaching to the name. and secondly that the adoption of name by the defendant brings about a tangible risk of damage whether in the form of diversion of customers or confusion of the plaintiffs and defendants businesses or both. To that one must add that confusion in itself is held to import a suffici ent risk or damage to maintain the action. Romer L. J. in his concurring opinion stated the position of law an under:. . . . IF a name in which a plaintiff has a substantial goodwill is likely to be confused with a trade name which is adopted by a defendant then passing off is established. Romer L. J. in his concurring opinion stated the position of law an under:. . . . IF a name in which a plaintiff has a substantial goodwill is likely to be confused with a trade name which is adopted by a defendant then passing off is established. The law then assumes that damage will follow. Once a plaintiff has established substantial goodwill in a name he has a property in it which he is entitled to have protected against passing off. When the plaintiff has established that pro. perty the only question is: is there a likelihood in the future that if the plaintiff and the defendant trade as the Courts think reasonably probable confusion will arise from the trade name adopted by the defendant ?ormered L. J. in his concurring speech stated the legal position in the following terms:the plaintiff must prove a properly in the name which he claims that he is entitled to protect and to prevent the defendant using and the name used by the defendant must be proved to be calculated to cause confusion in such a manner that either damage is actually caused or will be apprehended in record to the plaintiffs trade. ( 17 ) IN The Dunlop Pneumatic Tyre Co. Ltd. v. The Dunlop Lubricant Co. (1899) 16 R. P. C. 12 the facts were that since 1988 A. D. the word Dunlop was first used by the predecessors in title of the plaintiff company The Dunlop Pneumatic Tyre Co. Ltd. to designate the goods manufactured by them and since then the word has been in continuous use as designating such goods which consisted of tyres and pumps in flators and other accessories for cycles. One Joseph Peter Funt started business as the Dunlop Lubricant Company at various addresses in London and dealt in oils and lubricants for cycles. On the labels under which these goods were sold the words The Dunlop were printed in large thick type and the names of the lubricants in smaller type. There was also on the labels a design consisting of a wheel which bore a marked resemblance to a similar device which the plaintiffs used upon their letter paper. In an action for an injunction the defence of Funt was that he was carrying on the business of lubricant oil in partnership with one John Francis Dunlop. There was also on the labels a design consisting of a wheel which bore a marked resemblance to a similar device which the plaintiffs used upon their letter paper. In an action for an injunction the defence of Funt was that he was carrying on the business of lubricant oil in partnership with one John Francis Dunlop. By a deed of dissolution that partnership business was dissolved and ail the assets and interests in the business of the firm were assigned and released to the defendant Funt together with the goodwill thereof. He was therefore entitled to carry on the business under the firm named The Dunlop Lubricant Company. On hearing the evidence Romer J refused to believe the defence and held as under:. . . . . . IT appears to me it would be wrong to allow him to carry on business under that name and to describe the goods as he does as Dunlop goods for that is the chief word that he uses on the covers of his goods with regard to his burning oil and his graphite which he sells. The word Dunlop is put in a very prominent way and I am satisfied that he does that with a view of inducing customers to believe that those goods if they are not the goods of the plaintiffs are goods used in some way with their sanction or connected in some way with them so as to get the benefit of the plaintiffs name. Romer J therefore granted the injunction as prayed for. ( 18 ) IN The National Bank of India v. The National Bank of Indore (1922) 24 Bom. L. R. 1181 a similar question arose in the following circumstances: The plaintiff bank was carrying on business for more than 50 years under the name of The National Bank of India Ltd. Besides usual banking business it imported and sold gold bars stamped with its name in English and vernacular. The defendant Bank was a new bank started for doing all kinds of banking business in Bombay and elsewhere and proposed to deal in bullion and specie and it was called. The National Bank of Indore Ltd. The plaintiff bank sued to restrain the defendant bank from trading under its proposed name for it was a colourable imitation of the plaintiffs name. The National Bank of Indore Ltd. The plaintiff bank sued to restrain the defendant bank from trading under its proposed name for it was a colourable imitation of the plaintiffs name. Mulla J granted the injunction and held that the name adopted by the defendant bank was so similar to that of the plaintiff bank that it was calculated to deceive ordinary persons and to induce them to do business with the defendant company under the supposition that they were dealing with the plaintiff bank; and that a person would not trade under a name so closely resembling that of the plaintiff as to be mistaken for it by the public. At page 1184 Mulla J posed the crux of the problem in similar action as under:the question to be determined in cases of this description is whether there is such a similarity between the two names as that the one is in the ordinary course of human affairs likely to be confounded with the other: Hendriks v. Montagu (1881) 17 Ch. D. 638. It is not necessary to prove that the defendants in taking the name complained of by the plaintiffs had any fraudulent intent (Ibid p. 651 ). It is enough if the plaintiffs prove that the act of the defendants in assuming the name complained of is an injury to the plaintiffs rights: North Cheshire and Manchester Brewery Company v. Manchaster Brewery Company. There is no question in such cases of property or monopoly in the name. The principle upon which the cases on this subject proceed is not that there is property in the word but that it is a fraud on a person who has established a trade and carries it on under a given name with some other person who assumes the same name or the same name with a slight alteration in such a way as to induce persons to deal with him in the belief that they are dealing with the person who has given a reputation to the name: Lee v. Heley (1869) L. R. 50 Ch. App. 155 161 Hendriks v. Montagu (1881) 17 Ch. D. 638 a contention was advanced before Mulla J that there was no likelihood of deception as regards intelligent persons and persons who knew how to read and write and that therefore the plaintiffs were not entitled to any relief. App. 155 161 Hendriks v. Montagu (1881) 17 Ch. D. 638 a contention was advanced before Mulla J that there was no likelihood of deception as regards intelligent persons and persons who knew how to read and write and that therefore the plaintiffs were not entitled to any relief. Negativing this contention it was held that the question in this class of cases is not whether the intelligent section of the public is likely to be deceived but whether the public at large is likely to be deceived Mulla J quoted with approval the following observation of Sir George Jessel in The Guardian Fire and Life Assurance Company v. The Guardian and General Insurance Company (Limited) (1880) 50 L. J. Ch. 253 at p. 255: the public are careless and it is no use supposing that if they paid a very moderate attention to names they would see they were not the same but only similar. ( 19 ) IN Ruston and Hornby Ltd. v. Zamindara Engineering Co. A I R. 1970 S. C. 1649 the appellant company Ruston and Hornby Ltd. was registered proprietor by the registered trade mark Ruston in respect of internal combustion engines. Ruston and Hornby (India) Ltd. was a registered user of the said trade mark and was manufacturing in India and selling in India internal combustion engines under the trade mark RUSTON. Ruston Hornsby (India) Ltd. was subsidiary of the appellant company. In June 1955 the appellant Company came to learn that the respondent was manufacturing and selling diesel internal combustion engines under the trade mark RUSTAM. The Additional District Judge dismissed the suit of the appellant company holding that there was no visual or phonetic similarity between RUSTON and RUSTAM. The High Court of Allahabad in appeal at the instance of the appellant company held that the respondent company committed infringement of the trade mark of the appellant company and. therefore it should be prohibited from using the word RUSTAM. However it dismissed the appeal on the ground that the use of the words RUSTAM INDIA was not an infringement because the plaintiffs engines were manufactured in England and the defendants engines were manufactured in India and therefore the suffix India would be a sufficient warning that the engine sold was not a RUSTON engine manufactured in England and the respondent may be permitted to use the combination RUSTAM INDIA. The plaintiff company therefore carried the matter in appeal before the Supreme Court. Ramaswami J speaking for the Court pointing out the distinction between an infringement action and a passing off action observed as under in paragraphs 4 5 and 6:4 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 plaintiffs goods ? 5 But in an infringement action the issue is as follows: Is the defendant using a mark which is the same as or which is a colourable limitation of the plaintiffs registered trade mark ? It very often happens that although the defendant is not using the trade mark of the plaintiff the get up of the defendants goods may be so much like the plaintiffs that a clear case of passing off would be proved. It is on the contrary conceivable that although the defendant may be using the plaintiffs mark the get up of the defendants goods may be so different from the get up of the plaintiffs goods and the prices also may be so different that there would be no probability of deception of the public. Nevertheless. in an action 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 plaintiffs mark. 6 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 secs. 309 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 as but it is not necessary for B to prove that A did this knowingly or with any intent to deceive. 309 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 as but it is not necessary for B to prove that A did this knowingly or with any intent to deceive. It is enough that the get up of Bs 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 deception nor any actual damage need be proved. These are in short the relevant principles which have been applied by the Courts in passing off action. . . . . . . . . . . . . . . . . . . . . . . . [ His Lordship after considering the facts of the case and the averments made by the parties observed that in the state of evidence and the clear admission of the defendant firm the conclusion is unescapable that the respondent firm was carrying on its business under the name and style of Bharat Tiles which name has been attached to the goods of the plaintiff company in the trading circle in particular and the public in general. His Lordship further observed: ]26 Inspite of these findings. it is really surprising that the learned Assistant Judge refused to grant the relief as prayed for by the plaintiff company. The grounds which weighed with the learned Assistant Judge are 1 That there was no evidence on record for proving the fact that the goods offered by the defendant were such that it can be passed off as the goods of the plaintiff and that there was a distinction of the goods of the plaintiff and those of the defendant because the word Bharat was engraved on the tiles of the plaintiff company while the letters B. T. C. were engraved on the tiles of the defendant firm. 2 That there was no evidence on record which would prove the fact that anybody was deceived or the fact that the defendant firm was representing that their goods were the goods of the plaintiff company. 3 In the advertisement the words Bharat Tiles were not prominently displayed. 4 The customers were not likely to be deceived because they purchase the goods through architects and engineers. 3 In the advertisement the words Bharat Tiles were not prominently displayed. 4 The customers were not likely to be deceived because they purchase the goods through architects and engineers. 27 I am of the opinion that the learned Assistant Judge was clearly in error in applying the correct principles to the facts of the case. The principles as stated above are so well known and the aforesaid reasons which have weighed with the learned Assistant Judge for refusing the relief to the plaintiff company are no reasons on the matter of principles or the authorities which have been set out above. (Rest of the judgment not material for the reports.) .