The offence of which the defendant is accused is that provided for in section 448 of the Criminal Code of Canada, which deals with the forgery of trade-marks and the fraudulent marking of merchandise. Under that section everybody is guilty of an indictable offence who sells or has in his possession for sale, or for any purpose of trade, any goods to which a forged trade-mark or a false trade description is applied, or to which a mark so nearly resembling a trademark as to be calculated to deceive is falsely applied. Now, under section 443, sub-section 2, the provisions relating to the application of a false trade description of goods extend to the application to goods of marks which are reasonably calculated to lead persons to believe that the goods are the manufacture or merchandise of some person other than the person whose manufacture or merchandise they really are. Under article 450 any one charged with the commission of the offence of selling goods falsely marked is also liable to be tried in a summary way and to be punished on summary conviction.

In this case the defendant does not dispute the sale of the goods in question nor the fact that he keeps goods similarly marked for the purposes of trade, but he says that he is within his legal rights in doing so; in other words that the mark he uses is not calculated to deceive. The issue which I have to decide therefore is one of fact, namely, as to whether the so-called Peg-top label which the defendant uses is calculated to deceive. There have been a number of witnesses examined upon both sides at the trial of this case, some of whom testified that incautious or unwary purchasers of goods of this description might be deceived by the use of the defendant's label into believing that they were buying the goods of Messrs. John De Kuyper & Son. As I do not find that under the circumstances this evidence is necessary in order to enable me to come to a conclusion I will not enter into it. I am entitled to examine the label for myself and to form a conclusion as to the resemblance. In re Marks & Tellefsen's Application, 63 L. T. 234. In so doing I have to bear in mind the circumstances and conditions under which

the two labels are used. Wotherspoon & Currie, 5 E. & I. App., p. 508; In re Beigel's Application, 57, L. T., p. 247; Re Rosing's Application, 54 L. J. Chy. p. 975. They are both applied to the sale of gin, both used upon bottles of the same shape, height and color, sealed with wax of the same color and the label affixed to each bottle in the same place. Looked upon at a little distance the general effect of the two packages is the same. It is not claimed by the prosecution that a cautious purchaser would be deceived by the resemblance. The plaintiffs' label is a white heart-shaped piece of paper upon which is printed the word "Geneva" in large letters, and other matter in smaller characters. The defendant's label is also upon white paper and is shaped so as to have a resemblance to a peg-top, or more accurately speaking to the section of a peg-top. It also bears on it the word "Geneva" and other matter in smaller characters, but in size and general effect it resembles the other label. It is obvious that any person of ordinary intelligence comparing the two side by side would detect the points of difference between them, but these are not the persons whom the law desires to protect. The object of the legislation in this country, I take to be to protect the owners of trade-marks so as to secure to them the benefit of the money and time which they have expended in building up a market for their own goods, and to do this the legislature must protect them with respect not to the intelligent and wary purchaser, but to the unwary one. Per Lord Kingsdown in Leather Cloth Co. v. American Leather Cloth Co., 11 H. L. C., p. 539. Lord Chelmsford in Wotherspoon & Currie, L. R. 5 E. & I. App. 519. In my opinion there is a sufficient resemblance between the two labels used in the way they are to justify me in saying that the defendant's label is calculated to deceive.

The facts of the case would also indicate that such was the intention. It was stated, though not proved in evidence, that the defendant had recently prepared a gin of a peculiar flavor which he desires to put upon the market and to distinguish from other gins already known to the trade. If such is the case, his gin cannot yet have any special reputation or

be particularly known under the label which is complained of. In August last it appears that he used a white heart-shaped label. Messrs. John Hope & Co., who represent Messrs. John De Kuyper & Son in Canada, notified the defendant that if the use of this label was not discontinued, legal proceedings would be taken against him, and he thereupon agreed to withdraw the objectionable label and wrote a letter, which is filed, to the effect that he would not use it in future.. Almost immediately afterwards he appears to have devised this peg-top label. Why he should have done so, if his intention was to absolutely distinguish his goods from those of others, it is difficult to understand. The gin of Messrs. John De Kuyper & Son was probably the best known in the market. It appears by the evidence of Mr. Langlois to have a larger sale than any other, and by the evidence of Mr. Lajoie to be known as "heart gin." Now, if the defendant was seeking to adopt some form of label which would distinguish his gin, he would naturally have adopted some form of mark, hundreds of which might suggest themselves, not in any way resembling that of Messrs. John De Kuyper & Son; he does not do this, but applies the whole of his ingenuity to devising something that is as nearly like the label of Messrs. John De Kuyper & Son as it possibly can be, and yet have distinctions which can be pointed out by a person of ordinary intelligence.

In Seixo v. Provezende, 1 Chy. App., p. 196, Lord Cranworth, L. C., said, "It would be a mistake to suppose "that "the resemblance must be such as would deceive persons "who would see the two marks placed side by side." The rule so restricted would be of no practical use.

It appears by the evidence of Mr. Ethier, examined on behalf of the defendant, that Mr. Authier consulted him before using this label, told him of his previous trouble with Messrs. Hope & Co. with regard to the label he had been using, and then asked Mr. Ethier's opinion as to whether he would get into trouble by using the label he proposed to adopt, and thereupon Mr. Ethier expressed his opinion in the negative; at the same time, however, he advised him to sub

mit the label to Messrs. Hope & Co. before he used it, but this Mr. Authier said he would not do and does not appear to have done.

As regards the want of proof as to any persons having been actually deceived I would refer to Johnson v. Orr Ewing, 7 App. Cases, 219, where Lord Blackburn quotes with approval the words of Lord Justice James, "The very life of

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a trade-mark depends on the promptitude with which it can "be vindicated," and lays it down that where there is a similarity calculated to deceive, the use may be restrained although the evidence does not show that any purchaser had actually been misled. Cf. Edelston & Vick, 18 Jur., p. 7; Farina v. Silverlock, 24 L. J. Chy, 632.

Some authorities have been cited with regard to the interpretation of the statute, which are really only applicable to the modern French law. I do not feel that I am called upon to compare our respective systems of Trade-mark legislation. The provisions in this respect of our Criminal Code are taken from the law of England, and the part relating to the fraudulent marking of merchandise is taken almost verbatim from English statutes. It is moreover the universal law of Canada, applying in all of the Provinces, all of which except Quebec are governed by laws derived from those of England and by English decisions for their interpretation. I could not, therefore, in interpreting a statute copied from an English one, consider myself bound by French authorities, where they differ from the English decisions on the same matter. Under the English law, as I have already stated, the question to be decided is whether an incautious or unwary purchaser would be deceived.

Under the circumstances, I see no reason to disturb the decision of the Court below, by which the defendant was convicted, and this appeal is therefore dismissed with costs. Conviction affirmed.

L. E. Bernard, for the appellant.

T. Brosseau, counsel.

C. S. Campbell, for the respondent.
M. J. F. Quinn, Q. C., counsel.

Notes: Trade-mark-At common law.

The appropriation of the trade mark of another, apart from any signature therein included, is not forgery at common law, R. v. Smith, 1 Dears & B., C.C. 566, 27 L.J.M.C. 225. Nor is it forgery if the signature copied be not upon a document or paper, and therefore an imitation of an artist's signature upon a spurious picture was held not to be an offence at common law, R. v. Closs, D. & B. 460, 7 Cox C.C. 494.

Time for prosecution.

The prosecution must be commenced within three years from the time the offence was committed. Criminal Code,

sec. 551 (a).

"Without the assent of the proprietor."

By sec. 710 of the Code it is provided that in any prosecution "for forging a trade mark" the burden of proof of the assent of the proprietor shall lie on the defendant.

This would seem to apply only to cases coming under the definition laid down by sec. 445 as follows:

Every one is deemed to forge a trade mark who either,(a). without the assent of the proprietor of the trade mark, makes that trade mark or a mark so nearly resembling it as to be calculated to deceive;

(b). falsifies any genuine trade mark, whether by alteration, addition, effacement or otherwise.

If the offence charged be under sub-section (b) of sec. 447 of the Code, for falsely applying to any goods any trade mark or any mark so nearly resembling a trade mark as to be calculated to deceive, it would seem to be necessary for the prosecution to negative the assent of the proprietor.

By the corresponding English Act, the Merchandise Marks Act, 1887, 50 & 51 Vict., c. 28, in separate provisoes, the one in respect of forging, and the other as to falsely applying, the onus is placed in both cases upon the defendant (sections 4 and 5).