Judgment :- Shanmukham, J. 1. This proceeding under the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as the Act) is for a permanent injunction restraining the defendant, his agents and servants from manufacturing and selling tooth powder with the trade mark label marked document No. B filed along with the plaint or any other colourable imitation of the plaintiff's trade marks A. 1 and A. 2 and for rendition of accounts by the defendant of the profits made by the defendant by the use of the offending trade mark labels from the date of inception and the payment of the same to the plaintiff, and directing the defendant to surrender all unused offending trade mark labels in their possession and also block, dice, etc. The suit was originally laid as against the first, defendant and later, on application No. 1367 of 1976 the second defendant was impleaded. The plaintiff's case is that it is a registered firm engaged in the business of manufacture and sale of tooth powder among other articles under the name and style of S.P.S. Jayam and Company and Vel Chemical Works at No. 25, East Nappalayam Street, Madurai. 1. Its tooth powder is known as Gopal Tooth Powder and registered under the provisions of the Act as early as 30.4.1947. The said trade mark samples in different colour designs are produced along with the plaint as Document Nos. A.1 and A.2 Along with the above also has been registered the design of a "Vel" as an associated trade mark under the provisions of the Act on 25.10.1957. Both the registrations have been renewed from time to time and they are in current force. Thus, the plaintiff is the present owner of the said registered trade mark labels. The plaintiff's trade marks had become very popular among the public and as a matter of fact, the plaintiff had popularised the trade marks by costly, extensive, and wide advertisements through newspapers, cinema slides, all-India Radio, Ceylon Radio, etc. and a sum ranging between Rs. 1.5 to 2 lacs is being spent by the plaintiff yearly on such advertisements on the tooth powder manufactured by the plaintiff. The product is being sold by the plaintiff in India and abroad. It has established a name and reputation in the market; the trade mark is associated with high quality of the product in the market. 1.5 to 2 lacs is being spent by the plaintiff yearly on such advertisements on the tooth powder manufactured by the plaintiff. The product is being sold by the plaintiff in India and abroad. It has established a name and reputation in the market; the trade mark is associated with high quality of the product in the market. The plaintiff has been periodically publishing the trade mark caution advertisements in newspapers in different languages and warning against using any label which is similar to or which is a colouable imitation of the trade mark of the plaintiff. About a month prior to the institution of the suit, the Managing Partner of the plaintiff on his usual periodical business tour of inspection of the market, was surprised to find that the defendant is selling tooth powder with a brand name of "Balaji Tooth Powder" in packets very similar to those of the plaintiff. In the City of Madras wherever the plaintiff's products are being sold, the products of the defendant 'Balaji Tooth Powder' with the infringing labels are being sold on a large scale. The defendant is thus guilty of having infringed the plaintiff's trade mark and also passing off his goods as those of the plaintiff. The defendant is carrying on business in the name and style of Shri Gajalakshmi and Company at No. 8, Muthiah Mudali Street, Old Washermenpet, Madras 21. Besides, the size, get-up and the colour scheme of the infringing labels are very similar to those of the plaintiff. The majority of the persons using tooth powder manufactured by the plaintiff, are illiterate and as such, buy the tooth powder looking at the labels. Because of the deceptive similarity of the infringing labels with the labels of the plaintiff, the buying public are deceived and are put into a state of confusion. The distinctive features of the plaintiff's trade mark are Gopal Tooth Powder in English and below that...............in Tamil, in dark blue and light brown background as well as in red and white background. The defendant had adopted the same arrangement and was using the same design with red and white background as that of the plaintiff. The folding is deceptively and strikingly similar to that of the plaintiff. The Tamil words are also the same. The defendant had adopted the same arrangement and was using the same design with red and white background as that of the plaintiff. The folding is deceptively and strikingly similar to that of the plaintiff. The Tamil words are also the same. The figure of "Lord Venkatesh" is substituted in the place of Child "Krishna" and is deceptively similar to that of the plaintiff's. The plaintiff further states that the tooth powder manufactured by the defendant is inferior in quality and lesser in price and therefore, the introduction of the defendant's goods with the infringing mark had adversely affected the plaintiff's business considerably and is likely to spoil the good name earned by the plaintiff. Hence, the suit for the reliefs as earlier stated. 2. The first defendant did not file any written statement though represented by counsel. I must state here that though the trial went on, without the learned counsel for the first defendant or the first defendant himself participating in the proceeding, when the matter was taken up for argument, learned counsel for the first defendant reported "no instructions." 3. In the statement filed by the second defendant, he had alleged that the first defendant is now manufacturing under the name and style of "Caltone Tooth Powder," R.V. Trading, Madras 21 and that the first defendant is residing at No. 5, Gollamman Koil Street, Near Thiruvottiyur High Road, Madras-21 but not in No. 8, Muthiah Mudali Street, Madras-21 as stated in the plaint. This defendant does not show the link between the first defendant and Gajalakshmi products. This defendant is only an employee of M/s Enfield India Limited, Thiruvottiyur, Madras, and has neither the time nor the wherewithal to take up any side business; he is not at all connected with the business titled Gajalakshmi and Co. said to be manufacturing Balaji Tooth Powder. No doubt, this defendant and the first defendant took advice from this defendant's father for Siddha Vaidya. This defendant is quite unaware of any infringement of plaintiff's rights, is not in any way connected or has any knowledge of manufacture of Balaji Tooth Powder. To extract some monetary benefit from the second defendant, he had been roped in as a party to this proceeding. The plaintiff and the first defendant are hand-in-glove and wish to exploit this defendant. To extract some monetary benefit from the second defendant, he had been roped in as a party to this proceeding. The plaintiff and the first defendant are hand-in-glove and wish to exploit this defendant. This defendant had no objection to the plaintiff proceeding against the first defendant and Gajalakshmi and Co. The suit is therefore liable to be dismissed so far as this defendant is concerned. 4. On these pleadings, the following issues were framed. 1. Whether the defendant infringed the registered trade mark of the plaintiff ? 2. Whether the second defendant is a necessary party to the suit ? 3. Whether the plaintiff is entitled to the relief of accounting or damage ? 4. To what relief is the plaintiff entitled ? Just at the time of trial, the following additional issue came to be framed; 5. Whether the defendants are liable to surrender unused offending trade mark labels and other blocks in their possession. 5. It is the stand of the second defendant that he was only an employee of Enfield India Limited and has nothing to do with the business titled Gajalakshmi and Co. said to have been carried on by the first defendant and with the product of the said firm titled Balaji Tooth Powder. No doubt, he had not chosen to examine himself as a witness. But, P.W. 1 in his cross-examination, has stated that he does not know whether the second defendant is working in Enfield India Limited or not. No doubt, he had deposed that both the defendants are manufacturing tooth powder. But, it must be noted that initially, the suit was not laid as against the second defendant. He was later impleaded as a party on the plaintiff's application No. 1367 of 1978. I am not inclined to accept the evidence of P.W. 1 that the second defendant is also interested in the firm Gajalakshmi and Co. or is manufacturing Balaji Tooth Powder, when there is no material placed before me. He was later impleaded as a party on the plaintiff's application No. 1367 of 1978. I am not inclined to accept the evidence of P.W. 1 that the second defendant is also interested in the firm Gajalakshmi and Co. or is manufacturing Balaji Tooth Powder, when there is no material placed before me. It is significant to note that in the affidavit filed in support of his application No. 1367 of 1976, it is alleged by one of the Managing Partners of the plaintiff that because it was alleged in the counter affidavit filed by the first defendant who was then the sole defendant referring to Hari, it was necessary for the plaintiff to implead the second defendant as a party also to this action. It is therefore evident that P.W. 1 could not be personally aware that the second defendant was manufacturing tooth powder. The result is, I find the second defendant is not a necessary party to this suit. At any rate, he cannot be held liable by the plaintiff in any manner for the alleged infringement of the trade mark. This issue if thus found in favour of the second defendant. 6. The question is whether the defendant's trade mark is deceptively similar to that of the plaintiff's trade mark. The plaintiff's trade mark is marked as Ex.P. (3) and P.3 (a), while that of the defendant as Ex.P.2 Mr. U.N.R. Rao, learned counsel for the plaintiff relying upon the following similarities, viz.. (1) same dimension, (2) the curve in the ascending position containing in all the word "tooth powder" in English and "....." in Tamil, (3) there is a Lord's picture in left hand top, (4) there is a shield at the top in the middle of the label, (5) "trade" on its left while "mark" on the right at the top of label intercepted by a design, (6) chemical works (7) red letter with the white background and (8) red line border at the outer extreme and white line border immediately proceeding it and same alignment of words on the reference of the label, will submit that the defendant is certainly guilty of violating the plaintiff's trade mark. That the plaintiff's trade mark is a registered trade mark, is evident from Ex.P.1. That he is therefore the proprietor of the said trade mark, is established. That the plaintiff's trade mark is a registered trade mark, is evident from Ex.P.1. That he is therefore the proprietor of the said trade mark, is established. Any one who should imitate the said trade mark, will certainly be guilty of infringing the plaintiff's property. It is further contended by the learned counsel for the plaintiff's that in so far as the plaintiff has been carrying on business for several years and in so far as the first defendant had started business only recently, the first defendant must have copied his mark from that of the plaintiff. He would also contend that though there are dissmimilarities, they are only few and that at any rate, similarities are larger both qualitatively and quantitatively when compared to dissmimilarities. 7. In support of his contention, he drew my attention to three decisions, AIR 1946, P.C. 109 (Subbiah v. Kumaraval), (1963) Vol. L RPC 12 (Bryant and May Ltd. v. United Match Industries Ltd.) and (Parle Products v. J.P. & Co. Mysore). In AIR 1946, PC 109, it is ruled. "The question of infringement of the plaintiff's trade-marks must be answered in relation to the plaintiff's trade marks as a whole, and not to particular parts of them" * In their Lordships' opinion, the material consideration is that the marks were plainly calculated to lead to confusion and deception and the similarities were so close as to make it impossible to suppose that such marks were devised independently of each other. It is ruled by their Lordships that in the absence of any evidence of a common origin, the conclusion must be that one party copied the mark of the other and the only conclusion from the evidence would be that it was the defendant who copied the design of the plaintiff. 8. The principle laid down in 40, RPC 12 is, it is enough for proof of infringement if from the evidence it is possible to conclude that there will be actual confusion on account of the existence of the two marks. 9. 8. The principle laid down in 40, RPC 12 is, it is enough for proof of infringement if from the evidence it is possible to conclude that there will be actual confusion on account of the existence of the two marks. 9. "In an action for infringement, the plaintiff must, no doubt, 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 an imitation, no further evidence is required to establish that the plaintiff's rights are violated. Ex-pressed in another way, if the essential features of the trade mark of the plaintiff have been adopted by the defendant, the fact that the get-up, backing and other writing or marks on the goods or on the packets in which he offers his goods for sale show marked differences or indicate clearly a trade origin different from that of the registered proprietor of the mark would be immaterial; whereas in the case of passing off, the defendant may escape liability if he can show that the added matter is sufficient to distinguish his goods from those of the plaintiff. According to Kerly's Law of Trade Marks and Trade Names (9th Paragraph 838)." * Two marks, when placed side by side, may exhibit many and various differences, yet the main idea left on the mind by both may be the same. A person acquainted with one mark, and not having the two side by side for comparison, might be well deceived, if the goods were allowed to be impressed with the second mark, into a belief that he was dealing with goods which bore the same mark as that with which he was acquinted. Thus, for example, a mark may represent a game of foot ball: another mark may show players in a different dress, and in very different positions, and yet the idea conveyed by each might be simply a game of football. It would be too much to expect that persons dealing with trade marked goods, and relying, as they frequently do, upon marks should be able to remember the exact details of the marks upon the goods with which they are in the habit of dealing. It would be too much to expect that persons dealing with trade marked goods, and relying, as they frequently do, upon marks should be able to remember the exact details of the marks upon the goods with which they are in the habit of dealing. Marks are remembered rether by general impressions or by some significant detail than by any photographic recollection of the whole. Moreover, variations in detail might well be supposed by customers to have been made by the owners of the trade mark they are already acquainted with for reasons of their own." " It is therefore clear that in order to come to the conclusion whether one mark is deceptively similar to another, the broad and essential features of the two are to be considered. They should not be placed side by side to find out if there are any differences in the design and if so, whether they are of such character as to prevent one design from being mistaken for the other. It would be enough if the impugned mark bears such an overall similarity to the registered mark as would be likely to mislead a person usually dealing with one to accept the other if offered to him. In this case we find that packets are practically of the same size, the colour of the two wrappers is almost the same; the design on both though not identical bears such a close resemblance that one can easily be mistaken for the other. The essential features of both are that there is a girl with one arm raised and carrying something in the other with a cow or cows near her and hens or chickens in the foreground. In the background, there is a farm house with a fence. The words 'Gluco Biscuits' in one and 'Glucose Biscuits' on the other occupy a prominent place at the top with a good deal of similarity between the two writings. Anyone in our opinion who has a look at one of the packets today may easily mistake the other if shown on another day as being the same article which he had seen before. If one was not careful enough to note the peculiar features of the wrapper on the plaintiff's goods he might easily mistake the defendants' wrapper for the plaintiff's if shown to him some time after had seen the plaintiffs. If one was not careful enough to note the peculiar features of the wrapper on the plaintiff's goods he might easily mistake the defendants' wrapper for the plaintiff's if shown to him some time after had seen the plaintiffs. After all, an ordinary purchaser is not gifted with the powers of observation of a Sherlock Holmes. We have therefore no doubt that the defendant's wrapper is deceptively similar to the plaintiff's which was registered. We do not think it necessary to refer to the decisions referred to at the Bar as in our view each case will have to be judged on its own features and it would be of no use to note on how many points there was similarity and in how many others there was absence of it. "If these principles laid down in the decision extracted above were to be borne in mind, I am of the view that the impugned mark bears such an overall similarity to the registered mark as would be likely to mislead a person usually dealing with one to accept the other if offered to him. The result is, I find that the first defendant had infringed the registered trade mark of the plaintiff. Issue No. 3: 10. No doubt, P.W. 1 had stated that the plaintiff had suffered damage to the extent of Rs. 1, 000/-. Excepting his sole interested testimony, there is no supporting evidence. Though the first defendant remained exparte and though the second defendant is not really interested in contesting the proceeding, still in my view, the plaintiff cannot withhold relevant materials such as plaintiff's account books and so on to establish that he has suffered damage and that too to the extent of Rs. 1, 000/-. As a matter of fact, in the course of cross-examination at the instance of the second defendant, P.W. 1 who is said to be in charge of the sales of the plaintiff's products in Chetput since 10 years, had stated that he did not know whether the name of Balaji Tooth Powder was changed into Caltone Tooth Powder and that whether the tooth powder was manufactured at all. He would further admit that he does not know where the first defendant is residing. In this state of unsatisfactory evidence, I must hold that the plaintiff has not established proof of damage. He would further admit that he does not know where the first defendant is residing. In this state of unsatisfactory evidence, I must hold that the plaintiff has not established proof of damage. Further there is no satisfactory evidence that the first defendant is still carrying on business, using label with the offending mark marked as Ex.P.3. If at all there was any sale of tooth powder with the offending label of the defendant, viz., Balaji Tooth Powder, nothing prevented the plaintiff from purchasing one from the local market and proving such purchase by producing receipt and the like. It therefore follows that the plaintiff is not entitled to the relief of accounting as well. Issue No. 5: 11. Here again, there is no evidence that the first defendant is still possessed of labels with offending trade marks like Ex.P.2. In the absence of such evidence, I cannot but reject the plaintiff's claim in this behalf. The issue is therefore found against the plaintiff. Issue No. 4: 12. The result is that the suit is decreed for an injunction restraining the first defendant, his agents and servants from manufacturing and selling tooth powder with the Trade Mark label marked as Ex.P.2. In other respects, the suit is dismissed. In the above circumstances, I make my view, there is no justification for taking a view different from one taken by the learned Judge of the City Civil Court on several aspects of the matter canvassed here which were also canvassed in City Civil Court, as evident from the order in the Notice of Motion No. 3761 of 1992." * 9. One of the points urged by C&C in its suit to challenge the Deed of Assignment and other co-related documents is that the defendant BDA was obliged to continue the marketing arrangement incorporated in the agreement dt. 1st April 1991 referred to hereinbefore. BDA served a notice dated 31st December 1992 terminating the marketing agreement dt. 1st April 1991 and the service agreement of the same date with immediate effect. According to C&C the act of termination of the said agreement is a circumstance giving rise to the apprehension in the mind of the plaintiff. 1st April 1991 referred to hereinbefore. BDA served a notice dated 31st December 1992 terminating the marketing agreement dt. 1st April 1991 and the service agreement of the same date with immediate effect. According to C&C the act of termination of the said agreement is a circumstance giving rise to the apprehension in the mind of the plaintiff. The point was turned down by the learned Single Judge of the Bombay High Court on the ground that clause 13 of the Marketing Agreement dated 1st April 1991 reserves the right of termination and BDA had exercised the said right. Further no relief of declaration was claimed in the suit filed by C&C that the termination of the marketing agreement was in any way illegal or that it continues to bind BDA. It was also felt that the stand of C&C regarding the Marketing Agreement was different in the suit filed by BDA in the Bombay City Civil Court, therefore, the said point was turned down. 10. The above resume of facts gives the nature of controversy between the parties in this litigation. In this context it is also worthwhile to mention that C&C and BDA were both part of the Shaw Wallace Group of Companies when the admitted documents, namely, agreement to assign dated 30th August 1990, the Deed of Assignment dated 26th February 1991, marketing agreement dated 1st April 1991 and the service agreement dated 1st April 1991 were executed. These agreements were devised for the benefit of the Group as a whole. One of the ov no order as to costs.