"If a purchaser looking at the article offered to him would naturally be led, from the mark impressed upon it, to suppose it to be the production of the rival manufacturer, and would purchase it in that belief, the Court considers the use of such a mark to be fraudulent. But I go further. I do not consider the actual physical resemblance of the two marks to be the sole question for consideration. If the goods of a manufacturer have, from the mark or device he has used, become known in the market by a particular name, I think that the adoption by a rival trader of any mark which will cause his goods to bear the same name in the market may be as much a violation of the rights of that rival as the actual copy of his device." (Seixo v. Provezende, 1 LR. Ch. 196.)

·

Accordingly, in that case where the plaintiff had been in the habit of stamping his casks with a coronet and the word 'Seixo,' whence his wines acquired the name of Crown Seixo Wine,' an injunction was issued against the use by the defendant of a coronet with the words 66 Seixo de Cima."

But an injunction will issue where an indictment could not be maintained under this Section, since it is necessary not only to shew that the mark would produce a false belief, but that it was used with that intention.

The intention to cause a false belief will always be inferred, where the mark is in itself a false statement, and is affixed under circumstances which would naturally lead to belief of that statement. If a shopkeeper, named Smith, were to impress the brand of "Rodgers, Sheffield," upon an iron knife from Birmingham, no further evidence would be necessary to show that he meant to create a false impression as to its maker and origin. This is peculiarly one of those cases in which the act itself being primâ facie improper, the burthen of proving that it was done under circumstances which might make it innocent would lie upon the defendant. (See ante, p. 71, 128.)

It would be otherwise where the mark, though similar to that used by other tradesmen, contained no false statement, and might have been accidentally and innocently adopted.

This Section does not include false statements as to quantity. Therefore, the fraud which was exposed some time ago of marking reels of cotton as if they contained 300 yards, when they really only contained 250, would pass unpunished. If, however, such reels were sold to any person as containing the quantity marked upon them, this would be the offence of cheating under s. 415.

481.

Whoever marks any moveable property, or

Using a false property-mark.

goods, or any case, package, or other receptacle, containing moveable property or goods, or uses any case, package, or other receptacle having any mark thereon, with the intention of causing it to be believed that the property or goods so marked, or any property or goods contained in any case,

package, or other receptacle so marked, belong to a person to whom they do not belong, is said to use a false property-mark.

Punishment for using a false trade

482. Whoever uses any false trade-mark or any false property-mark with intent to deceive or injure any person, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.

or property mark

to

with intent deceive or injure

any person.

The deception referred to in this Section must, I suppose, be such a deceit as amounts to a fraud or breach of legal obligation. Otherwise, a host who wished to combine ostentation with economy, by giving his guests gooseberry out of bottles with a champagne label, might be indicted for the trick. If, however, the landlord of a hotel, who is paid for his wine on its supposed quality, were to do the same, there would be a legal fraud, which would be criminal under s. 482.

It will not be necessary to show an intention to deceive or injure any particular person, if such deceit or injury would be the natural consequence of the use of the false mark under the circumstances in question. Nor would it be necessary to show that any one was, in point of fact, deceived. Indeed, in general where the deceit had been carried into effect against any person, the more serious offence of cheating would have been committed.

Counterfeiting a trade or property mark used by another, with in

483. Whoever, with intent to cause damage or injury to the public or to any person, knowingly counterfeits any trade or property-mark used by any other person, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

tent to cause damage or injury.

a

Counterfeiting property-mark used by a public

484. Whoever, with intent to cause damage or injury to the public or to any person, knowingly counterfeits any propertymark used by a public servant, or any mark used by a public servant to denote that any property has been manufactured by a particular person, or at a particular time or place, or that the same is of a particular quality, or has

servant, or any mark used by him to denote the manufacture, quality, &c., of any property.

passed through a particular office, or that it is entitled to any exemption, or uses as genuine any such mark knowing the same to be counterfeit, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.

Fraudulent

making or having possession of any

die, plate, or other instrument for counterfeiting any public or private property or trade mark.

485. Whoever makes or has in his possession any die, plate, or other instrument for the purpose of making or counterfeiting any public or private property or trade mark, with intent to use the same for the purpose of counterfeiting such mark, or has in his possession any such property or trade mark, with intent that the same shall be used for the purpose of denoting that any goods or merchandize were made or manufactured by any particular person or firm by whom they were not made, or at a time or place at which they were not made, or that they are of a particular quality of which they are not, or that they belong to a person to whom they do not belong, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

Knowingly selling goods marked with a counterfeit property or trade mark.

486. Whoever sells any goods with a counterfeit property or trade mark, whether public or private, affixed to or impressed upon the same, or upon any case, wrapper, or receptacle in which such goods are packed or contained, knowing that such mark is forged or counterfeit, or that the same has been affixed to or impressed upon any goods or merchandise not manufactured or made by the person or at the time or place indicated by such mark, or that they are not of the quality indicated by such mark, with intent to deceive, injure, or damage any person, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.

487.

Fraudulent mak

ing a false mark upon any package

or receptacle containing goods.

Whoever fraudulently makes any false mark upon any package or receptacle containing goods, with intent to cause any public servant or any other person to believe that such package or receptacle contains goods which it does not contain, or that it does not contain goods which it does contain, or that the goods contained in such package or receptacle are of a nature or quality different from the real nature or quality thereof, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. 488. Whoever fraudulently makes use of any such false mark with the intent last making use of any aforesaid, knowing such mark to be false, shall be punished in the manner mentioned in the last preceding Section.

Punishment for

such false mark.

Defacing any property-mark with intent to cause injury.

489. Whoever removes, destroys, or defaces any property-mark, intending or knowing it to be likely that he may thereby cause injury to any person, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.

CHAPTER XIX.

OF THE CRIMINAL BREACH OF
CONTRACTS OF SERVICE.

490.

Whoever being bound by lawful contract to render his personal service in conveying or conducting any person or any property from one place to another place, or to act as servant

Breach of contract of service during a voyage or journey.

to any person during a voyage or journey, or to guard any person or property during a voyage or journey, voluntarily omits so to do, except in the case of illness or ill-treatment, shall be punished with imprisonment of either description for a term which may extend to one month, or with fine which may extend to one hundred Rupees, or with both.

Illustrations.

(a) A, a palanquin bearer, being bound by legal contract to carry Z from one place to another, runs away in the middle of the stage. A has committed the offence defined in this Section.

(b) A, a cooly, being bound by lawful contract to carry Z's baggage from one place to another, throws the baggage away. A has committed the offence defined in this Section.

(c) A, proprietor of bullocks, being bound by legal contract to convey goods on his bullocks from one place to another, illegally omits to do so. A has committed the offence defined in this Section.

(d) A, by unlawful means, compels B, a cooly, to carry his baggage. B, in the course of the journey, puts down the baggage and runs away. Here, as B was not lawfully bound to carry the baggage, he has not committed any offence.

It has been held by the High Court of Bengal that the words "during a voyage or journey" govern the whole of this Section, and, therefore, that breach of a contract to carry indigo from the field to the vats is not punishable under s. 490. (2 R. Č. C. CR. 63, and see 5 R. C. C. CR. 29.)

"This Section does not apply to servants hired by the month, and under a continuing implied contract to serve until the engagement is terminated by a month's notice." (Rulings of the Madras High Court, 27 March, 1863, 7 Jan. 1868.)

The first question under this and the two succeeding Sections will be, whether the contract was one by which the defendant was legally bound. Putting cases of compulsion aside, the only doubt which is likely to arise upon this point is where the undertaking has been gratuitous. The law upon this point is long settled, viz., that a party who engages gratuitously to perform a service cannot be compelled to undertake it at all. But, if he do enter upon the performance of the task he is bound to complete it. Since a new consideration arises from the very fact that, by undertaking the duty, he has induced the other to rely upon his performance of it and to entrust him with its discharge. (2 Sm. L. C. 193.)

In a recent case, an action was brought against the stewards of a race course, whose services were unpaid, for negligence in performing them. Jervis, C. J., in giving judgment, said,

"The rule is well laid down in Smith's Mercantile Law, p. 112, where it is said, that there is a difference between the principal's rights against a remunerated and against an unremunerated agent. The former, having once engaged, may be compelled to proceed to the task which he has undertaken;