Evidence in a Trademark – Trademark Registration in Coimbatore
Jam Pengingat Waktu Sholat the sale or passing off of second hand used blades as genuine blades of the plaintiff’s safety razors was held to be objectionable.
The proximity of trade:
Evidence can also be let in as regards the proximity of the place where the defendant sets up his business to that where the plaintiffs business under a similar name has already been well-established and attained a reputation. In such a case, it will be a strong evidence to show that the defendant, though trading in his own name, intends to take fraudulent advantage of its similarity of plaintiff’s name.
Evidence as to damage – How far necessary:
Evidence as to damage is not essential to the success of the action. It must be enough if the plaintiff shows that the defendant is acting in a manner which will result in passing off of his goods as those of the plaintiffs, the reason being that it will be generally assumed that the plaintiff is thereby prevented from selling as much of his goods as he could otherwise do. But, if there is no ground for such assumption, proof of actual or probable damage will be necessary.
A reputation of medical practitioners:
Passing off may relate to the name of a medical practitioner and the goods suggested to have been produced by his prescription. In such a case inferiority or inefficiency of the goods will affect the reputation of the medical practitioner. Though strictly speaking the medical practitioner would not be deemed to be conducting a trade in relation to goods, he would be entitled to a personal right to complain against the passing off. This will be really an action in tort.
Relative expense of articles – Nature of the same – Whether capital or consumer goods – Purpose of purchase, etc.
Evidence will be important as to the relative expense of the article, the purpose of the purchase, and as to whether they are capital or consumer goods and the relative importance of the articles in the eyes of the consumer. A person purchasing a box of sweets does not use as much care as one who purchases radio or a clock.
In determining whether the counterfeit so closely resembles the genuine as to be likely to deceive the ordinary buyer, the court must take into consideration the degree of care which buyers usually exercise in buying such an article as that which is the subject of the distinguishing mark; for it is a matter of common knowledge that the ordinary buyer does not, as a general rule, exercise as much caution in buying an article for which he pays a few pennies as he does in purchasing a more valuable thing. The instances are very rare, I suppose, where a purchaser exercises as much care in buying a bottle of beer as he does in buying a bottle of whiskey, a box of cigars, or a hat or a coat.
In this connection, we must not lose sight of the character of the article, the use to which it is put, the kind of people who ask for it and the manner in which it is ordered. Very broad scene painting will deceive an ignorant, thoughtless or credulous domestic, looking for an article in common and daily use, and of no particular interest to her personally. The same kind of deception would be instantly detected by an intelligent woman of the world, looking for her favorite perfume, soap or dentifrice, or by a man of luxurious tastes, inquiring for a same special brand of champagne.
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