Deceptively similar trade marks can trigger infringement, passing off, and interim restraint when used as part of a corporate name.

A registered trade mark owner may obtain interim protection where a later user adopts a deceptively similar mark for identical or allied goods and uses it as part of a trade name, because infringement is assessed on overall impression and extends to trade-name use. The document also states that passing off is established where the later mark is likely to misrepresent trade origin and injure goodwill, even if the goods are differently presented. Defences based on common trade use, delay, and acquiescence fail without cogent proof, especially where adoption appears dishonest and infringement is recurring.

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Issues: (i) Whether the defendant's use of MAX as a trade mark and as the dominant part of its corporate name amounted to infringement of the plaintiff's registered mark MEX. (ii) Whether the defendant's use amounted to passing off. (iii) Whether the defendant could defeat interim relief on the grounds that MAX was common to the trade and that there was delay and acquiescence by the plaintiff.

Issue (i): Whether the defendant's use of MAX as a trade mark and as the dominant part of its corporate name amounted to infringement of the plaintiff's registered mark MEX.

Analysis: The plaintiff established prior adoption and long use of MEX, statutory registration in relevant classes, and substantial reputation. The Court applied the statutory scheme governing registered marks and held that infringement is made out where a person, not being the registered proprietor, uses in the course of trade an identical or deceptively similar mark for identical or similar goods. It further noted that protection extends to use of a registered mark as a trade name or part of a trade name, and that the mark has to be assessed by overall impression rather than microscopic comparison. On the facts, MEX and MAX were found visually, phonetically, and structurally deceptively similar.

Conclusion: The defendant's use of MAX as a mark and as part of its corporate name amounted to infringement of the plaintiff's registered trade mark.

Issue (ii): Whether the defendant's use amounted to passing off.

Analysis: The plaintiff showed that its mark and trade name had acquired goodwill and reputation, that the parties dealt in allied electrical goods, and that the defendant had adopted a closely resembling mark and name. The Court applied the settled passing off principles of misrepresentation, likelihood of confusion, and injury to goodwill. It held that once the resemblance was found to be close enough to create confusion, the difference in get-up, product character, or claimed sophistication of the goods did not negate the likelihood of deception.

Conclusion: The defendant was held to be passing off its goods as those of the plaintiff.

Issue (iii): Whether the defendant could defeat interim relief on the grounds that MAX was common to the trade and that there was delay and acquiescence by the plaintiff.

Analysis: The defendant failed to produce cogent evidence of substantial user of MAX by third parties so as to establish that the mark was common to the trade. The Court also held that mere delay did not defeat the plaintiff's statutory rights, particularly where infringement was recurring and the adoption of the mark appeared dishonest. In the absence of convincing proof of acquiescence or abandonment, these defences were rejected. The Court further found a strong prima facie case, balance of convenience in favour of the plaintiff, and a risk of irreparable injury if injunction were refused.

Conclusion: The defences of common user, delay, and acquiescence were rejected.

Final Conclusion: Interim restraint was warranted against use of the deceptively similar mark MAX and its use as part of the corporate name, while the jurisdictional objection was left open for later determination.

Ratio Decidendi: A registered proprietor is entitled to interim protection where another trader adopts a deceptively similar mark for the same or allied goods, uses it as part of its trade name, and fails to prove that the mark is common to the trade or that delay amounts to acquiescence.

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