JUDGMENT T.C. Raghavan, J. 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. 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. 4. The next decision is again of the Supreme Court; and that is Amritdhara Pharmacy v. Satya Deo Gupta ( AIR 1963 SC 449 ). There again the Supreme Court has laid down some propositions useful for the present case. What degree of resemblance between two trade marks is necessary to deceive or cause confusion is incapable of definition a priori. However, two questions are to be borne in mind: one, who are the persons whom the resemblance is likely to deceive or confuse, and two, what rules of comparison are to be adopted in judging whether such resemblance exists. And the question has to be approached from the point of view of an unwary purchaser of average intelligence and imperfect recollection, and what has to be considered is the overall similarity of the two marks, having regard to the circumstances of the case. 5. The next decision, again of the Supreme Court, is one which arose from this State in Kaviraj Pandit Durga Dutt Sharma v. Navaratna Pharmaceutical Laboratories ( AIR 1965 SC 980 ); and in this case also there is a fairly elaborate discussion useful to the case before us. 5. The next decision, again of the Supreme Court, is one which arose from this State in Kaviraj Pandit Durga Dutt Sharma v. Navaratna Pharmaceutical Laboratories ( AIR 1965 SC 980 ); and in this case also there is a fairly elaborate discussion useful to the case before us. An action for passing off is a Common Law remedy being in substance an action for deceit, a passing off by a person of his goods as those of another. The gist of an action for infringement is different. The action for infringement is a statutory remedy conferred on the registered proprietor of a registered trade mark for the vindication of his exclusive right to the use of the trade mark in relation to his goods. The use by the defendant of the trade mark of the plaintiff is not essential in an action for passing off, but is the sine qua non in an action for infringement. Where the evidence in respect of passing off consists merely of the colourable use of a registered trade mark, the essential features of both the actions may coincide in the sense that what would be a colourable imitation of a trade mark in a passing off action would also be such in an action for infringement of the same trade mark. But the correspondence between the two ceases there. And in an action for infringement, the plaintiff must make out that the use of the defendant's mark is likely to deceive, but where the similarity between the plaintiff's and the defendant's mark is so close either visually, phonetically or otherwise and the court reaches the conclusion that there is imitation no further evidence is required to establish that the plaintiff's rights are violated. The length of user of a mark will also be a material factor for the mark to become distinctive and exclusively associated with the goods of the plaintiff. 6. And the last decision is also of the Supreme Court; and that is the recent decision in Ruston & Herns Ltd. v. The Zamindara Engineering Co. (Civil Appeal No. 1274 of 1966: not yet reported). In this case also the Supreme Court has pointed out the distinction between an infringement action and a passing off action. 6. And the last decision is also of the Supreme Court; and that is the recent decision in Ruston & Herns Ltd. v. The Zamindara Engineering Co. (Civil Appeal No. 1274 of 1966: not yet reported). In this case also the Supreme Court has pointed out the distinction between an infringement action and a passing off action. The former is a statutory right; and if the trade mark of the defendant is identical with the plaintiff's mark, the court will not enquire whether the infringement is such as is likely to deceive or cause confusion. But, if the alleged infringement is not in using the exact mark, but something similar then the test of infringement is the same as in an action for passing off. And the gist of the latter is that the defendant is not entitled to represent that his goods are the. goods of the plaintiff. But it is not necessary for the plaintiff to prove that the defendant did this knowingly or with any intent to deceive. It is enough that the get up of the plaintiff's goods has become distinctive and that there is a possibility of confusion between them and the goods of the defendant. No case of actual deception need be proved. 7. A few decisions of some of the High Courts have also been brought to our notice. But we do not think that we need consider them, since they lay down the same principles we have pointed out above. We would only add that the comparison of the plaintiff's mark, get up or make up or whatever it be with the mark, get up or make up etc. of the defendant should not be a side by side comparison. Such a side by side comparison may bring out some contrasts between the two; but that is not what should be done. The purpose of the comparison is to find out the probable reaction of an unwary purchaser with average intelligence, who had occasion to purchase the plaintiff's goods. Will he, relying on his imperfect recollection and not having the plaintiff's mark, get up, make up etc. before him, get confused and mistake the defendant's goods he is purchasing to be those of the plaintiff? That is the test: that is the purpose of comparison: that is how the comparison should be made. 8. The disputed carton of the appellant is Ex. before him, get confused and mistake the defendant's goods he is purchasing to be those of the plaintiff? That is the test: that is the purpose of comparison: that is how the comparison should be made. 8. The disputed carton of the appellant is Ex. P11; and the current carton used by the respondent is Ex. P5. We may point out the registered carton Ex. P9 is exactly similar to Ex. P5. There is a monogram in white on a green background on the front of the carton just above a crescent containing the English letters CRK. Above and below the monogram, there are two wavy white lines each; and above and below these wavy lines, on a chocolate background, are printed CHANDRIKA (above) and AYURVEDIC SOAP (below) in white in English. On the back of the carton the same CHANDRIKA and AYURVEDIC SOAP are there in the same pattern as on the front; and in the middle, instead of the crescent and the monogram, a legend, Manufactured by LAL PRODUCTS, KARIKKAMURI ROAD, ERNAKULAM, is printed in chocolate on a green background enclosed by a rectangle drawn in white lines. On the sides of the carton the words CHANDRIKA SOAP AYURVEDIC TOILET are also printed in white on a green background. Again, on the top of the carton, "Chandrika" in Malayalam and on the bottom, "Chandrika" in Tamil are also printed. In Ex. P11 the colour pattern and the background are exactly similar to the colour pattern and background in Ex. P5. Even the white wavy lines are there. Instead of the monogram above the crescent on the front of the carton appear three English letters, ARL enclosed by a rectangle of white lines; and on the back of the carton, instead of the legend, Manufactured by Lal Products, etc. the legend, MOST EFFICACIOUS IN ALL KINDS OF SKIN TROUBLES is printed in chocolate on a green background. Of course, instead of the name Chandrika the name of the appellant's soap is Anand. And on the top of the carton appears "Anand" in Tamil and on the bottom appears "Anand" in Malayalam; and on the sides of the carton appear ANAND SOAP AYURVEDIC TOILET. The carton of the appellant is of the same shape and size as that of the respondent. 9. And on the top of the carton appears "Anand" in Tamil and on the bottom appears "Anand" in Malayalam; and on the sides of the carton appear ANAND SOAP AYURVEDIC TOILET. The carton of the appellant is of the same shape and size as that of the respondent. 9. If we go by phonetic similarity, it has to be said that there is no phonetic similarity between Anand and Chandrika. But the similarity need not be phonetic alone: it may be visual or even otherwise. If visual similarity is of any criterion, there is striking similarity between the two cartons; and there is also no doubt that an unwary purchaser of average intelligence with imperfect recollection will mistake one for the other. More: we feel that even a fairly careful purchaser, unless he is more than ordinarily careful, relying upon his recollection of the carton of the respondent, will be deceived into thinking that the carton of the appellant he is purchasing is really the carton of the respondent. There is evidence that Pw. 3 started his business as early as 1939 and built up a good reputation also for his soap. A series of certificates Ex. 21 to 34, have been produced to show his reputation rather, the reputation for his soap. The appellant started his business only in 1963; and when he started manufacture of soap, the canon he used was Ex.P10 which is very different from Ex. P11. Ex. P10 will not be mistaken for Ex. P5 It was only in 1964 that he switched on to Ex. P11. The evidence of the appellant himself as Dw. 1 is that he obtained three or four designs for the carton by another and ultimately chose Ex. P11. Pw. 2 was an employee under the appellant; and he says that he pointed out even then to the appellant that Ex. P11 had strong similarity with the carton used by the respondent. In spite of that, the appellant started using Ex. P11. 10. In considering a question of passing off, it is not necessary that the plaintiff should establish that the passing off by the defendant was deliberate. P11 had strong similarity with the carton used by the respondent. In spite of that, the appellant started using Ex. P11. 10. In considering a question of passing off, it is not necessary that the plaintiff should establish that the passing off by the defendant was deliberate. It is enough he satisfies the court that he acquired a reputation for his goods and the mark, get up or make up used by the defendant was such that an unwary purchaser with average intelligence would mistake the goods with that mark, get up or make up for the goods of the plaintiff. Of course, if he can also establish that the use of the mark, get up or make up (the carton in this case) by the defendant was deliberate, then, the intention to deceive is also there. (The absence of such intention may, however, influence only the question of damages). In this case, as we have already pointed out, the switch over by the appellant from Ex. P10 to Ex. P11 in 1964 was a deliberate attempt to copy the carton of the respondent. Therefore, the conclusion of the lower court that there was passing off by the appellant is correct. 11. The memorandum of cross objections has to be considered now. We have already stated that the claim of infringement of the trade mark of the respondent was disallowed by the lower court. The respondent had of course obtained registration for his carton. But, the question is whether the entire carton can be considered to be his trade mark. The word "mark" has been defined under S.2(1)(j) of the Act as to include "a device, brand, heading, label, ticket, name, signature, word, letter or numeral or any combination thereof, and the expression "trade mark'' is defined in clause (v) of the same sub-section to mean "a registered trade mark or a mark used in relation to goods for the purpose of indicating or so as to indicate a connection in the course of trade between the goods and some person having the right as proprietor to use the mark". Unless the entire carton can be brought under the definition of "mark" first and of "trade mark" next, it may not be possible for the respondent to contend that the entire carton should be treated as his trade mark. Unless the entire carton can be brought under the definition of "mark" first and of "trade mark" next, it may not be possible for the respondent to contend that the entire carton should be treated as his trade mark. The definition of "mark" and the definition "trade mark" indicate that the whole of the carton including the colour scheme thereof cannot be brought within the definition of either "mark" or of "trade mark". Therefore, the lower court was right in rejecting the contention of the respondent that his trade mark was infringed. If at all, the respondent's trade mark could only have been the monogram CRK above the crescent appearing on the front of the carton; and this has not been copied by the appellant in his carton. Therefore, there is no infringement of any trade mark registered by the respondent. In this view, the memorandum of cross objections has to be rejected. 12. A minor question has also been raised before us by the appellant. It is contended that the suit should not have, been filed in the District Court and should have been filed only in the Subordinate Judge's Court. The argument is that the suit being mainly against passing off, it should have been filed in the subordinate Judge's Court. There were two prayers in the suit, one, relating to infringement of trade mark, and two, relating to passing off. A suit relating to infringement or trade mark had to be filed in the District Court; and if there were two prayers one of which related to infringement of trade mark, the suit had to be filed in the District Court. Therefore, this contention has no force whatsoever. 13. The above discussion shows that the appeal and the memorandum of cross objections are both to be dismissed. And they are both dismissed with costs.