M. DAMODARA PAI M. Vs. C.K. MANILAL

JUDGEMENT

(1.) An action against infringement of trade mark and against passing off has given rise to this appeal, the appellant being the defendant and the respondent the plaintiff. Both were manufacturing soaps; and the respondent claimed that his trade mark was infringed by the appellant and that the appellant passed off his goods in cartons so similar to those used by the respondent that the appellant's goods were mistaken for those of the respondent. The lower court rejected the claim of infringement of trade mark, but accepted the contention relating to passing off. And the Trial Court passed a decree for injunction restraining the appellant from using the impugned carton without making sufficient alterations i to distinguish it from the respondent's carton. The other reliefs regarding costs, damages, etc. were reserved for consideration at the final decree stage. The appellant questions the correctness of the finding of the lower court on the question of passing off, while the respondent, in his memorandum of cross objections, disputes the correctness of the lower court's finding regarding the infringement of trade mark.

(2.) The facts do not admit of much serious controversy. The respondent's father, C. R. Kesavan Vaidiar, Pw. 3, started manufacturing soaps by name Chandrika Soap in 1939. He obtained registration of a carton under the Cochin Trade and Merchandise Marks Act. There was a further registration also by Pw. 3 of a slightly different carton, which retained the main features of the original carton. Pw. 3 transferred his business along with the goodwill to his son, the respondent; and the respondent also obtained a registration under the Trade and Merchandise Marks Act of 1958. The cartons registered on the several occasions had slight variations, but they all retained the main and important features of the original carton. The appellant started manufacturing soaps in 1963; and his product was called Anand Soap. He packed his soaps in a particular type of cartons in 1963; but in 1964, he adopted a new design for his carton, and that is the impugned carton. After the filing of the suit, however, the respondent obtained registration of his carton under the Copyright Act.

(3.) Regarding the law on the subject, we do not think there can be much difficulty in so far as the present case in concerned. However, we may indicate the principles we have to bear in mind in considering the question. In Corn Products Refining Co. v. Shangrila Food Products Ltd. (AIR 1960 SC 142), the Supreme Court has laid down the test for comparing two competing marks. The question whether they are so similar as to be likely to deceive or cause confusion is one of first impression and for the court to decide. The question has to be approached from the point of view of a man of average intelligence and imperfect recollection; and the question to be decided is whether the overall structural and phonetic similarity of the two marks is likely to deceive such a man or cause confusion in him as to make him mistake the goods of the defendant for those of the plaintiff.