Odger's English Common Law

614 INFRINGEMENT OF PATENTS, COPYRIGHTS, &C.
or device as his trade mark, the use by B. of a similar
picture or device will be an infringement, if a purchaser
would be thereby induced to purchase B.'s goods in the
belief that they are A.'s. The test is not whether there is a
similarity between two marks when lying side by side, but
whether, when a person sees one mark apart from the other,
he may take it for that other. 1 Thus the use of the word
Onsona was held to be an infringement of a trade mark
consisting of the word Anzora: 2 but the word Swankte
was held not to be an infringement of a trade mark consist-
ing of a picture of a swan together with the word Swan, as
there was no serious danger of any confusion between the
If the Court is satisfied that the trade mark
two words. 3
used by the defendant is calculated to deceive purchasers, it
is not as a rule necessary for the plaintiff to prove that any
purchaser was in fact deceived. 4 A person who uses such a
deceptive trade mark is not entitled to any protection in
respect of it. 5
On proof of the facts (i.), (ii.) and (iii.) above, the plaintiff
can recover damages, and in most cases he may also claim an
injunction and a declaration of his right to the exclusive use
of the trade mark. He may claim an account of the profits
made by the defendant from wrongful sales of goods impro-
perly marked with the trade mark ; but if he does so, he
cannot as a rule obtain damages as well. 6
IY. Trade Names.
A man's name is that by which others identify him. Any
man can take any name which he pleases so long as he can
get other people to call him by it—and this in spite of the
annoyance which such an act may cause to others who already
bear that name. 7
So, too, a man can give any name he pleases
1 1% re Sandow, Ltd.'s Application (1914), 31 R. P. C. 196 ;
sea post, p. 621.
30 Times L. R. 394, and
a Lewis v. Vine and Vine's Perfumery Co. (1913), 31 R. P. C. 12.
8 Be Thomas Crook's Trade Mark (1914), 31 R. P. C. 79 ; 110 L. T. 474
4 Reddaway v. Banham, [18961 A. C. 199.
6
S. 11.
e Lever v. Goodwin (1887), 36
L. R. 1 Eq. 299.
Ch. D. 1 ; Leather Cloth Co. v. Hirschfield (1865), v
' See however, the Registration of Business Names Act, 1916 (6 & 7 Geo. V. o. 58).