. Canadian grocer April-June 1918. trade mark is whether what the de-fendant has done is calculated to de-ceive or whether there is so much imita-tion that goods bearing the one markmay readily be mistaken for goods bear-ing the other and whether a more care-ful inspection than an ordinary purchaserwould be likely to give is necessary todistinguish the mark and appearance ofthe former goods from those of the latter. When an action is commenced havingfor its object the restraint of an allegedunfair competition in trade carried onby means of an employment by anotherof a trade mark identical or n
. Canadian grocer April-June 1918. trade mark is whether what the de-fendant has done is calculated to de-ceive or whether there is so much imita-tion that goods bearing the one markmay readily be mistaken for goods bear-ing the other and whether a more care-ful inspection than an ordinary purchaserwould be likely to give is necessary todistinguish the mark and appearance ofthe former goods from those of the latter. When an action is commenced havingfor its object the restraint of an allegedunfair competition in trade carried onby means of an employment by anotherof a trade mark identical or nearlyidentical with the plaintiffs there mustbe established in order for the actionto be successful the existence of thetrade mark, the plaintiffs right to ex-clusive use therein and the fact of animitation and the absence of license oracquiescence on the part of the plaintiff. Where it can be shown that a dealerhas imitated an article in his store andoffers it for sale as the genuine article,even though he has only made a single. sale, that is sufficient ground for an in-junction and the dealer will be restrain-ed from making any further sales. If the defendant uses a distinct andobvious trade mark on his goods whichhe is alleged to be passing off as theplaintiffs, and if he states plainly andin clear type that these goods are manu-factured by himself, there is a verystrong indication that the defendant hasno intention of deceiving the public andit is doubtful in such a case if the courtwould restrain him. When the defendant has not used theregistered trade mark but something tobe considered similar to it, the plaintiffhas to satisfy the court that the use ofthis is calculated to deceive. But whenthe defendant has taken the material andessential part of the plaintiffs trademark, the burden is upon the defendantthen to disprove the probability of de-ception and not upon the plaintiff. If the plaintiff cannot prove that thepublic are deceived or that there is areasonable probabi
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