Trade mark infringement by deceptive similarity: adding "INDIA" did not avoid confusion between "RUSTAM" and "RUSTON".

Registered trade mark infringement was found where the respondent used "RUSTAM" and the composite expression "RUSTAM INDIA" for goods covered by the appellant's mark "RUSTON". The governing principle stated was that registration confers the exclusive right to use the mark, and infringement arises if another mark is identical or so nearly resembles it as to be likely to deceive or cause confusion. Once deceptive similarity between "RUSTAM" and "RUSTON" had been found, the addition of "INDIA" could not cure the infringement by adding matter outside the mark itself. The appellant was therefore entitled to injunctive relief, nominal damages, and delivery up of infringing materials.

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Issues: Whether the respondent's use of the mark "RUSTAM" and the composite expression "RUSTAM INDIA" infringed the appellant's registered trade mark "RUSTON" notwithstanding the addition of the word "INDIA".

Analysis: Under Section 21 of the Trade Marks Act, 1940, registration gives the proprietor the exclusive right to use the mark and infringement occurs where another uses a mark identical with it or so nearly resembling it as to be likely to deceive or cause confusion. In an infringement action, once deceptive resemblance between the marks is found, the inquiry does not turn on whether the defendant has added distinguishing matter outside the mark itself. The distinction between passing off and infringement was noted, but the decisive question here was whether the respondent's mark was deceptively similar to the registered mark. The finding that "RUSTAM" was deceptively similar to "RUSTON" having become final, the addition of "INDIA" could not avoid infringement.

Conclusion: The use of "RUSTAM" and "RUSTAM INDIA" infringed the appellant's registered trade mark "RUSTON"; the appellant was entitled to injunctive relief, nominal damages, and delivery up of infringing materials.

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