JUDGMENT Sudhir Narain, J.
1. This is a defendant's appeal against the order passed by the court below restraining the appellant from infringing in the plaintiff's registered trade mark bearing registration Nos. 417443, 453959 and 453009 in respect of 'parag' and further restraining it from using such mark.
2. The plaintiff-respondent filed suit against the appellant for permanent injunction restraining It from infringing the plaintiffs trade mark and for passing off its goods under the trade mark, 'parag' as the goods of the plaintiff with the allegations that the respondent company is manufacturing and selling pan masala and mouth freshener like Sada Pan Masala. Gutkha and chewing tobacco. The trade mark 'parag' is registered under the registration No. 417443 dated 10.2.1984 and 'pan parag' is registered on 12.5.1986 bearing registration No. 453959 and 'pan masala with zarda' bearing registration No. 453009. It has further applied for registration in the name of trade mark 'pan masala mawa'. The appellant is alleged to have started selling tea from the month of December, 2000, using plaintiffs trade mark 'parag' as its prefix. The allegation is that the goods of the appellant is likely to mislead the purchasers as the goods of the respondent company by ordinary purchaser of average memory, semi-literate and village folks and thus appellant is infringing the trade mark and damaging Its reputation. It filed an application for interim injunction which the court below has allowed ex parte by the impugned order.
3. As the order was passed ex parte, the appellant filed objection. The parties have already submitted their affidavits before the court below. The learned counsel for the parties made statement before this Court that instead of remanding the matter, the propriety of the grant of temporary injunction may be considered by this Court on the affidavits which they have filed in this Court.
4. The objection of the appellant is that it is not manufacturing pan masata or any of the Items manufactured by the respondent company. It is selling tea with the trade name 'parag chai' and the wrappers used by it are totally different in size, shape and colour and they are not deceptively similar to the respondent's trade mark.
5. The suit is based on "passing off action. The expression "passing off" has not been defined under the Trade and Merchandise Marks Act. 1958 (in short the 'Act'). The concept of passing off action is based on common law. It is a form of tort. This has come to this country from England. There were two enactments relating to the trademarks, (1) The Indian Merchandise Marks Act, 1889, and (2) Trade Marks Act, 1940. In the year 1958, the Trade and Merchandise Marks Act came into force and earlier two enactments were repealed by Section 136 of the Act.
6. Sub-section (1) of Section 27 of the Act, 1958, provides that no person shall be entitled to institute any proceeding to prevent or recover damages for infringement of unregistered trademark. Sub-section (2) is an exception to Sub-section (1), which specifically provides that nothing in the Act shall be deemed to affect rights of action against any person for passing off goods as goods of another person or the remedies in respect thereof.
7. Section 105 of the Act specifies remedies available to a person in respect of infringement of registered trade mark and also for passing off arising out of the use by the defendant of any trade mark which is identical with or deceptively similar to the plaintiffs trade mark whether registered or unregistered Section 105 of the Act reads as under :
"105. Suit Jor infringement, etc., to be instituted before District Court.--No suit--
(a) for the infringement of registered trademark ; or
(b) relating to any right in a registered trademark ; or
(c) for passing off arising out of the use by the defendant of any trade mark which is identical with or deceptively similar to the plaintiffs trade mark, whether registered or unregistered; shall be instituted in any Court inferior to a District Court having Jurisdiction to try the suit."
8. The word 'deceptively simila.' has been defined under Section 2(l)(d) of the Act, which reads as under :
"Deceptively similar.--A mark shall be deemed to be deceptively similar to another mark if it so nearly resembles that other mark as to be likely to deceive or cause confusion."
9. The two words are important, namely, 'deceive' and another 'confusion'. The question is what is the deception when goods are sold.
The deception is that the goods are sold by the defendant as the goods of another whose trade mark is being used, which is similar to the trade mark of such other person. It means misrepresentation to a buyer that the goods are being sold as of another person who has already established reputation under the trade mark or trade name whether registered or unregistered.
10. The next word used is 'confusion'. The confusion may arise as to Whether the goods are sold or marketed belong to seller or another person who has established his reputation in regard to trade mark or trade name. In any case the deception or causing confusion must relate to goods with the trade mark and not alone to the trade mark.
11. In Kedar Nath Gupta v. J.K. Organisation. 1998 PTC 189, the appellant therein applied for registration of trademark Jay-Kay in respect of locks, bolts, nuts, screws, etc. in Class 6 of Fourth Schedule of the Trade and Merchandise Marks Rules. 1959 (in short the Rules). This application was opposed by J. K. Organisation on the ground that the letters J. K. is registered in their name under various registrations in respect of goods falling in classes 16, 22, 23, 24, 26 and 27. The Registrar of Trade Marks refused the registration of the appellant. On appeal, the High Court held that the confusion and deception must relate to the goods and not alone to the trade mark. It was observed as under :
"It appears that simple similarity in the name in the trade mark, alone is not sufficient to make out a case either of infringement or of passing off for in both the cases confusion or deception is the essential element. For ascertaining confusion, one has to examine (a) the nature of the two marks including the letters used, the style of using letters, the devise in which they have been used, the colour combination of the trade mark ; (b) the class of customers ; (c) the extent of reputation ; (d) the trade channels ; (e) the existence of any connection to the course of trade and ; (f) all other surrounding circumstances. No doubt, it is not essential that all such factors should exist in each and every case to make out a case of passing off or infringement or to deny the registration of similar trade mark. But at the same time, it is also true that in case of presence of one single factor, leading to alleged deception or confusion would by itself not be sufficient to uphold the objection for registration of the trade mark.
The names starting with letter 'J' and 'K' being very common names, it is submitted that it cannot be inferred that it would cause deception and confusion in relation to different kinds of goods under Clause (a) of Section 11. It is further argued that in cases this kind of proposition is accepted then any letter and common words used by public in general could be monopolised. Even 'Sun' and 'micro' could be monopolised by one or the other firm.
Causing confusion or deception must relate to the goods along with the trade mark and not alone to the trade mark, is the submission of the learned counsel. It is rightly contended the moment it is accepted that the confusion and deception to be in relation to the goods and that the opponents were producing locks nor they had got any trade mark registered for the purpose of manufacturing the locks or anything of the Class 6, there could neither be confusion nor deception nor it is possible to presume so."
12. In S.M. Dyechem Ltd. v. Cadbury (India) Ltd., AIR 2000 SC 2114, while examining the difference between the words to deceive and to cause confusion, the Apex Court relied upon the observations made by Lord Denning in Parkar Knoll v. Knoll International. (1962) RFC 265 (HL). which reads as under :
"Looking to the natural meaning of the words, 1 would make two observations :
First, the offending mark must 'so nearly resemble' the registered mark as to be 'likely' to deceive or cause confusion. It is not necessary that it should be intended to deceive or intended to cause confusion. You do not have to look into the mind of the user to see what he intended. It is its probable effect on ordinary people which you have to consider. No doubt, if you find that he did not intend to deceive or cause confusion, you will give him credit for success in his intentions. You will not hesitate to hold that his use of it is likely to deceive or cause confusion. But if he had no such intention, and was completely honest, then you will look carefully to see whether it is likely to deceive or cause confusion before you find him guilty of infringement.
Secondly, 'to deceive' is one thing. To cause 'confusion' is another. The difference is this : when you deceive a man, you tell him a lie. You make a false representation to him and thereby cause him to believe a thing to be true which is false. You may not do it knowingly, or intentionally but still you do it, and so you deceive him. But you may cause confusion without telling him a He at all, and without making any false representation to him. You may indeed tell him the truth the whole truth and nothing but the truth but still you may cause confusion in his mind, not by any fault of yours, but because he has not the knowledge or ability to distinguish it from other pieces of truth known to him or because he may not even take the trouble to do so."
The above passage was also quoted by the Supreme Court in F. Hoffimann-La Rocho and Co. Ltd. v. Geoffrey Manners and Co. Private Ltd.. AIR 1970 SC 2062 (2064).
13. The question as to what would be the consideration for granting injunction in an action for passing off on the basis of unregistered trade mark of the defendant, the Apex Court in Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd., AIR 2001 SC 1952. laid down the following principles :
"Broadly stated, in an action for passing off on the basis of unregistered trade mark generally for deciding the question of deceptive similarity, the following factors to be considered :
(a) The nature of the marks, i.e., whether the marks are word marks or label marks or composite marks, i.e.. both words and label marks.
(b) The degree of resemblances between the marks, phonetically similar and hence similar in idea.
(c) The nature of the goods in respect of which they are used as trade marks.
(d) The similarity in the nature, character and performance of the goods of the rival traders.
(e) The class of purchasers who are likely to buy the goods bearing the marks they require, on their education and intelligence and a degree of care they are likely to exercise in purchasing and/or using the goods.
(f) The mode of purchasing the goods or placing orders for the goods : and
(g) Any other surrounding circumstances which may be relevant in the extent of dissimilarity between the competing marks.
Weightage to be given to each of the aforesaid factors depends upon facts of each case and the same weightage cannot be given to each factor in every case."
14. Keeping in view the principles laid down above, we broadly consider applicability of those principles in the facts and circumstances of the present case :
1. Nature of goods.--The appellant is selling tea under the trade name 'parag chai'. The tea is a beverage and is classified in Class 30 of Fourth Schedule of the Trade and Merchandise Marks Rules. The question is whether purchaser would be misled simply because trade name 'parag' has been used. The nature of the goods sold by the appellant is different. The respondent is selling betel and tobacco preparations. One of the tests is that if the goods of the plaintiff and defendant sold are different, it may not cause any confusion or deception. Another view is that even if the goods sold may be different, yet there may be similarity in the trade marks/ trade names and passing off action would lie against the defendant by the plaintiff and the Court may grant injunction restraining the defendant from using the trademark of the plaintiff. In Cadila Health Care case (supra), the Apex Court while laying down the principles under Clauses (c) and (d) in para 35 observed that the nature of the goods is relevant consideration.
In Thomas Bear and Sons (India) v. Prayag Narain, AIR 1935 All 7, the plaintiff-company, was carrying on business of manufacturing and sale of cigarettes and tobacco. All the goods sold by the company were bearing design of elephant. The brand of cigarettes was called the "Elephant Cigarettes' and the brand of tobacco was known as 'Virginia Birds Eye'. The tins and packets were bearing elephant trade mark. The defendant started sale of chewing tobacco under the name of 'elephant' and the picture of elephant was prominently displayed on the containers thereof. The Court held that the mark used by the defendant on packets and tins of chewing tobacco is not a colourable imitation of the plaintiffs trade mark. The resemblance between the two marks that both bear the symbol of elephant was itself not sufficient as there was no other similarity between the two marks. It was further to be proved by the plaintiff that the defendant is likely to deceive purchasers in respect of goods bearing the plaintiffs mark. This decision was confirmed by the Privy Council in Thomas Bear and Sons (India) Ltd. v. Prayag Narain and Anr. AIR 1940 PC 86. The Privy Council further held that there cannot be any monopoly in the use of trade mark.
In Sony Kabushiki Kaisha v. Shamrao Maskar and Ors. AIR 1985 Bom 327, the facts were that the petitioners therein had filed application for registration of the mark 'Sony' for its good 'Nail Polish'. The respondents filed objection to the registration on the ground that they were first to use the word 'sony' as a trade mark in relation to the electronic goods and the mark achieved worldwide popularity. The Court upheld the order of Assistant Registrar of Trade Mark who permitted the registration of the marks of the applicant for the Nail Polish on the ground that the goods were entirely different. The respondents were using the mark 'sony' and were selling goods like Television, Tape Recorders and Transistors, while the goods which the petitioners were selling under the mark was 'Nail Polish', an Item which is used by the women and artists. The Court observed that :
"It is claimed that two band transistors under the mark 'sony are easily available in Bombay and even assuming it to be so, it cannot be overlooked that the trade channel for sale of the two items are entirely different. The electronic goods and nail polish are not sold under one roof and there will not be any confusion in the mind of customer that both the items come from the petitioners' house in Japan. There is also no common field of activity in course of trade of the two items, and the classes of customers who would purchase the two items arc distinct and different."
The Court distinguished the case of Sunder Parmanand Lalwani and Ors. v. Caltex (India) Ltd.. AIR 1969 Bom 24 on facts.
In Vishnu Das Trading as Vishnudas Kishandas v. Vazir Sultan Tobacco Co. Ltd.. Hyderabad and Anr. AIR 1996 SC 2275, where the respondents, who were manufacturing cigarettes under the registered trade mark 'Charminar', opposed the registration of the appellant's application for getting it registered under the same trade mark, namely, 'Charminar on its bottle of quiwam and zarda. The Hon'ble Supreme Court held that as the goods were different and operating from two different channels, the appellant was entitled to use the trade mark 'Charminar' for sale of zarda, and it was further observed :
"It is also not disputed that the expression 'charminar' is not an inventive word which is the condition precedent for defensive registration under Section 47 of the Trade Marks Act (Section 38 of the Trade Marks Act of 1940). No evidence has been led by the respondent company that the respondent company had really intended or even now intends to manufacture any other product of tobacco other than cigarettes."
In Om Prakash Mahqjan and Narendra Kumar Mahqjan v. Hero Cycles Ltd., 1999 PTC 23, the applicant had applied for registration of trade mark, "Hero" in respect of goods sewing machines and parts thereof but the objection was raised by the opposite party that as it is manufacturing and selling cycles with the trade name "Hero" it will cause confusion and deception to the buyer. The Delhi High Court taking into consideration Section 11(a) of the Act held that the reputation of trade mark, is never in vacuum. It has to be in respect of the particular goods on which the proprietor of the trade mark. is using that mark. If the applicant's goods are neither the same nor of the same description nor the allied and cognate nor having any trade connection with that of the opponents' goods, the likelihood or confusion or deception by the use of the similar trade mark by the applicants totally diminishes. The Court allowed the application.
Another set of cases is that the goods being sold by the parties may be different and the trade channels may be different, yet there may be deception and confusion in passing off the goods.
In Corn Products Refining Co. v. Shangrila Food Products Ltd., AIR 1960 SC 142. an application was filed for registration of the mark 'Gluvita' in respect of its goods biscuits. The application was opposed by the appellant therein on' the ground that it had registered the mark 'Glucovita' for its products "Glucose", a substance used as food or as an ingredient in food. The Honb'le Supreme Court upheld the order of the Deputy Registrar rejecting the application of the applicant holding that there was a trade common between the two commodities, namely. Glucose manufactured by the appellant and the biscuits produced by the respondent as the average purchaser would like to think that the respondent's Gluvita biscuits were made with the appellant's Glucovita. In para 20 of the Judgment it was observed that :
"The absolute identity of the two competing marks or their close resemblance is only one of the tests for determining the question of likelihood of deception or confusion. Another test is trade connection between different goods."
In Ruston v. Engineering Co., AIR 1970 SC 1649. the plaintiff filed suit for injunction restraining the defendant from using the trade name 'Ruston' in respect of engine. The defence was that he used the trade name 'Ruston India' and not 'Ruston'. The Supreme Court held that the suit should be decreed as the mere addition of the word 'India' in the trade name was hardly relevant. In this case both were selling engines and the Court drawing the distinction between the infringement of trademark and passing off held that the similarity in passing off the goods was relevant.
In Banga Watch Company v. N. V. Philips: AIR 1983 P&H 418, the plaintiff filed the suit for injunction restraining the defendant from using the trade mark 'philips'. The defendant took the defence that It was carrying on business in the sale of watches, clocks, timepieces and do not carry on the business in the goods which was being carried on by the plaintiff in the electrical and non-electrical goods. The Court decreed the suit. The contention raised on behalf of the defendant was that the plaintiff's trade mark was registered only in respect of goods specified in Clause 14 of Schedule IV but did not include watches and clocks and secondly, the trademark in the present case being of a non-distinctive character was registered with a disclaimer as envisaged by Section 17(b) of the Act which disentitled the plaintiff from claiming its exclusive use was negatived by the Court on the ground that in an action of passing off these considerations themselves are not relevant if deception is proved. In para 12 of the judgment the Court gave reasoning that the defendant-respondent company, though, was not manufacturing the clocks but as they were manufacturing and marketing clocks, fitted with radios and transistors which may cause confusion to the buyers. Secondly, the defendants were selling watches and clocks in the same premises. Thirdly, there was no explanation on the record as to why the defendants chose the mark 'Philips' for marketing the watches and clocks.
In Bata India Ltd. v. Pyare Lal and Co., Meerut City and Ors. AIR 1985 All 242, the plaintiff 'Data Company' filed suit for injunction against the defendant restraining them from using the trade mark 'Bata Foam' or otherwise using the name of 'Bata'. The defendant took the plea that it was dealing in rubber and manufacturing goods which were made from natural raw rubber such as mattress, cushions etc. but as the plaintiff was manufacturing and selling shoes etc., there would be no deception and confusion in the minds of customers in regard to manufacturing and sale of different goods. The trial court rejected the application for grant of temporary injunction. The plaintiff filed appeal and the High Court allowed the appeal and granted the injunction. The Court repelled the contention that the defendant was selling different goods and therefore the passing off action would not lie against It. The defendant failed to explain as to why it used the name 'Bata'. It is a foreign name. It was observed :
"The name 'Bata' is neither fancy name or paternal name nor in any way connected with the defendants. It is not the name of a flower or fauna. It is a fancy name of a foreigner who has established his business in making shoes and the like products in this country. The name is well known in the market and the user of such name is likely to cause not only deception in the mind of an ordinary customer but may also cause injury to the plaintiff company."
In Mahendra and Mahendra Paper Mills Ltd. v. Mahindra and Mahindra Ltd., AIR 2002 SC 117, the plaintiff filed the suit restraining the defendants using the mark 'Mahindra and Mahindra' with the allegations that It is carrying on business using trade mark. 'Mahindra' and has group of companies in which 15 companies are included. The defendant is using the trade name 'Mahendra'. It is deceptively similar to the plaintiffs trade mark. The trial court granted temporary injunction. The Apex Court affirmed the order. In this case the plaintiffs were manufacturing many items and the defendant was using the trade name which was deceptively similar and in that circumstances the Court upheld the order granting injunction.
In Kirloskar Diesel v. Kirloskar Proprietary Ltd., AIR 1996 Bom 149, examining the concept of common field of activity and surveying the various decisions the Court held that the so-called requirement of the law that there should be a common field or activity has been discredited. The real question in each case is whether there is as a result of misrepresentation, a real likelihood of deception or confusion in the mind of the public and consequent damage to the plaintiff. The focus is shifted from the external objective test of making comparison of activities of parties to the state of mind of public in deciding whether it can be confused.
The appellant is selling tea in packets and the respondent is selling pan masala, Gutka and chewing tobacco in different packets. They are totally different commodities. It has to be established prima facie that there is any misrepresentation to the public that the appellant is selling its goods as that of the respondent. Prima Jade, there is no such evidence on the record.
11. Trade name.--The respondent is using trade names 'parag' in respect of its goods and this word is prefix or suffix to the goods manufactured and sold by it. It got registered trade mark (i) 'parag' bearing registration No. 417443 dated 10.2.1984 in Class 34 for chewing tobacco and tobacco preparations, (ii) 'pan parag' bearing registration No. 453959 under Class 34 dated 12.5.1986 in respect of pan masala with zarda and (iii) 'pan masafa' registered in Class 31 bearing registration No. 453059 in regard to sada pan masala. On 9.8.1989 the plaintiff respondent has also applied for registration of the mark 'pan masala mawa before the Registrar. Trade Marks. This application is still pending. The appellant has also applied for its registration under the trade mark 'parag chai' before the Registrar which is also pending.
Prior to the registration of trade mark of the respondent. Pradeshik Co-operative Dairy Federation Ltd., U. P.. Lucknow thereinafter referred to as PCDF) had applied for the registration of trade mark 'parag' under the provision of Trade and Merchandise Marks Act, 1958, which was registered on 28.8.1974 under Class 29 in the category of dried milk, skimmed milk, butter and Ghee and products made from milk. The trade mark 'Parag Milk' and 'Parag Saree' have also been registered and in this respect an information has been provided by the Registrar, Trade Marks, Mumbai. This clearly indicates that the respondent has not invented the name 'Parag'. This trade name was already in use in the market before the respondent got registered the trade mark 'pan parag', 'pan masala' and 'parag' as narrated above.
If a person can purchase milk in the name of 'Parag Milk' knowing fully that it is not being manufactured and sold by the respondent, or saree is being sold in the name of 'Parag Saree' and the customer is not confused, then unless there is an evidence to show that if the tea is sold by 'Parag tea' by the appellant, the purchaser will be confused and misrepresented that he is purchasing the tea manufactured by the appellant as that of the respondent, the Court will not grant injunction to the plaintiff. In Rolls Razor v. Rolls Lighters. (1949) 66 RPC 299 CA, where plaintiffs manufactured razors under the name of 'Rolls' and the defendants sold their lighters under the name 'Rolls lighters', the Court rejected the application of the plaintiff for injunction taking the view that both have chosen the word because of the reputation of Rolls-Royce Cars.
In Victory Transport Co, Put. Ltd. v. District Judge, Ghaziabad, AIR 1981 All 421, where the plaintiff filed the suit restraining the defendant from using the name and style of plaintiffs' company, i.e., "Victory Transport Company" and the defendant was carrying on business in the name of "Victory Goods Transport Company", the Court observed that in a passing off action, it has to be considered whether the words used in the trade names of the plaintiffs are mere descriptive words of common use or they have come to acquire a distinctive or secondary meaning in connection with the plaintiffs' business so that the use of those words in the trade name adopted by another was likely to deceive the public and the second test is whether there is reasonable probability that the use of name adopted by the defendant is likely to mislead the customers of the plaintiffs by reason of similarity of the two trade names. The Court held that the word 'Victory' was only a descriptive word of common use and the plaintiff failed to prove that it required a distinctive name in connection with its business.
The word 'Hero' in Om Prakash Mahcyan and Narendra Kumar Mahcyan v. Hero Cycles Ltd.. 1999 PTC 23 (Del), was held as a common word and the adoption of such word does not amount to affecting the trade mark of an opponent who has already got registered its trademark 'Hero'. in this case, the applicant applied for registration of the mark 'hero' for its goods sewing machines. The objection was raised by the opposite party that ft is manufacturing and selling cycles in the trade name 'Hero' and the application for registration of the trade mark. "Hero" should not be granted. The Court repelled the contention holding that the word 'Hero' is a common dictionary word and this word is being used by various proprietors in respect of various goods. The mark is not such an uncommon word or invested word that the adoption might be understood a deliberate attempt by an applicant to occupy the opponent's mark. Secondly, the sewing machines and cycles are totally different trade channels at the manufacturing stage.
The question why a person has adopted a particular trade name must be answered keeping in view the various factors. If the word taken by him is already prevalent in the market and there is no mala fide, the mere fact that he has adopted such name itself will not indicate that it has been adopted to mislead the customers of other persons who are using such trade name. As noticed A.W.C. 92 above, the appellant has used the word 'parag' in respect of tea which it is selling and such name being common and is being used by other traders, prima facie. unless otherwise proved by the respondent, it would not establish that the appellant is passing off its goods as that of the respondent.
III. Class of Purchasers.--One of the considerations is as to who are the customers who purchase the goods of the parties. In Cadifa Health Care Ltd. v. Cadila Pharmaceuticals Ltd. (supra), the plaintiff was selling Medicine in the trade name 'Falcigo' for malaria and the respondent was selling similar type of medicine in the name of Falcitab'. The trial court rejected the application for temporary injunction on the ground that normally the medicine is sold on the prescription of doctors and there is no occasion for entertaining confusion. This order was upheld by the High Court and the Supreme Court. The Apex Court while laying down various principles in Clauses (c) and (ft of para 35 emphasised that the class of purchasers who are likely to buy goods bearing marks and the mode of purchasing the goods or placing orders for the goods or placing orders for the goods are also relevant consideration in deciding the matter in passing off action.
In the present case, the tea sold by the appellant and betel and tobacco preparations sold by the respondent are different commodities. Some of the customers who are purchasing these goods may be common but the sale of tea in comparison to the goods prepared by the respondent is wider. The respondent is advertising in the newspapers, T. V. etc.. in respect of its own goods specifically. It has to be proved by it that inspite of such advertisement, there is confusion in the mind of the customers that the goods sold by the appellant are that of the respondent.
IV. Word Marks and Label Marks.--The Apex Court in Cadila case (supra) in Clauses (e) and (f) of Para 35 pointed out that the nature of marks and degree of resemblance between, the marks are relevant considerations for grant of injunction in an action of passing off. In Hiralal v. Ganesh Trading Co. and Ors. AIR 1984 Bom 218, the Court, after examining all the aspects, pointed out various aspects to be considered while considering as to whether defendant's label is deceptively similar to the plaintiffs label and is likely to deceive or cause confusion. It was observed as under :
"What emerges from these authorities is (a) what is the main idea or salient features, (b) marks are remembered by general Impressions or by some significant detail rather than by a photographic recollection of the whole, (c) overall similarity is the touchstone, (d) marks must be looked at from the view and first impression of a person of average intelligence and Imperfect recollection, (e) overall structure, phonetic similarity and similarity of idea or important and both visual and phonetic tests must be applied, (f) the purchaser must not be put in a state of wonderment, (g) marks must be compared as a whole, microspic examination being impermissible, (h) the broad and salient features must be considered for which the marks must not be placed side by side to find out differences in design and (i) overall similarity is sufficient. In addition indisputably must also be taken into consideration that -the nature of the commodity, the class of purchasers, the mode of purchase and other surrounding circumstances."
15. The parties produced before us the packets and the labels used by them. They are in different colours, different sizes and different shapes. The appellant is using tea leaf in its labels while the respondent is using betel leaf in its labels. The respondent has yet to lead evidence that inspite of such difference the confusion is caused in the mind of customers.
16. It is further to be noted that the balance of convenience has to be examined. In case the injunction is granted to the respondent, the appellant would suffer a greater hardship.
17. In view of the above, the appeal is allowed and the impugned order dated 31.8.2001 is hereby set aside. The plaintiff-respondent's application for grant of injunction is rejected.
18. We make it clear that the evidence is yet to be adduced by the parties and our observations are only in respect of prima facie evidence, which has been produced by the parties on affidavits. Any of the observations in this case should not affect the decision in the suit, which may be decided on evidence that may be led by the parties in the suit.
19. Considering the facts and circumstances, the parties shall bear their own costs.