Judgment :- P. K. SETHURAMAN, J. Application No. 4895 of 1989 is filed under Order XIV R. 8 of O.S. Rules and Order 39 Rules 1 and 2 C.P.C. praying for an order of interim injunction restraining respondents by themselves, their servants, agents, their printers and distributors from committing any infringement of the copyright of the plaintiffs in the artistic work found in M.O. No. 1 by displaying printing or causing to be printed the impugned work as found in M.O. No. 2 or any other work or creation or using such work in any phamplet, wrapper, containers, bags etc. in the course of the trade which is a colourable imitation or an infringement of the plaintiffs artistic work displayed in M.O. No. 1 to the plaint till the disposal of the suit. 2. Application No. 4896 of 1989 is filed under Order XIV Rule 8 of O.S. Rules and Order 39 Rules 1 and 2 CPC. Praying for an interim injunction restraining the respondents by themselves, servants, or agents or any one claiming through them from infringing the plaintiffs registered Trade Mark No. 331470 in class - 1 by the use of the offending trade mark as found in M.O. 2 or using the mark containing their essential and main features or any part thereof or from manufacturing or selling or offering for or advertising for sale any fertiliser product bearing the said trade mark or part of it or any other trade marks which are any way deceptive phonetically similar or a colourable imitation of the plaintiffs aforesaid registered trade mark as found in M.O. 1 to the plaint till the disposal of the suit. 3. 3. The applicant, Madras Fertilizers Limited, Manali, Madras, has filed the suit against the respondent/defendant Chaitra Fertilizers praying (a) for permanent injunction restraining the defendant by themselves, their servants, agents their printers and distributors from committing any infringement of the copyright of the plaintiff in the artistic work found in M.O. 1 by displaying, printing or causing to be pointed the impugned work as found in M.O. No. 2 or any other work or creation or using such work in any phamplet, wrapper, containers, bags, etc in the course of the trade which is a colourable imitation or an infringement of the plaintiffs artistic work displayed in M.O. 1 to the plaint ; (b) granting a permanent injunction restraining the defendant by themselves, servants or agents or any one claiming through them from infringing the plaintiff's registered Trade Mark No. 331470 in Class - 1 by the use of the offending Trade Mark as found in M.O. No. 2 or using the mark containing their essential and main features or any part thereof or from manufacturing or selling or offering for or advertising for sale any fertilizer product bearing the said trade mark or part of it or any other Trade marks which are any way deceptively or phonetically similar or a colourable imitation of the plaintiff's aforesaid registered trade marks as found in M.O. Nos. 1 to the plaint ; (c) directing the defendant to render a true and faithful account of the profit earned by them using the artistic work and the infringing mark 'Jai Vijay' as shown in M.O. 2 and directing such profit to be paid to the plaintiffs for the infringement of their copyright and Trade mark in Document No. 1 and 2 ; (d) directing the defendants to surrender to the plaintiffs, all the bags, containers, labels, packets and any other printed mattes containing or consisting of the offending artistic work/Trade Marks as found in M.O. No. 2 together with blocks used for the purpose of printing the same for destruction and for costs ; alleging infringement of registered trade mark and also copying distinctive portions of the registered trade mark and distinctive features of the trade marks as well as copying artistic work consisting of the picture farmer with the word 'Vijay' etc. used in the bags of the plaintiff's product in the goods produced by the defendant and thereby the defendant deliberately committed infringement of the registered trade mark and also infringed copyright in the artistic work of the plaintiff. 4. In the affidavit filed by the Company Secretary and General Manager of the plaintiff-company in support of the application, it has been stated that since the past few months the defendant has been deliberately infringing the plaintiffs' registered trade mark and the copyright in the artistic work of the plaintiff's registered Trade Mark No. 331470 in Class -1 in part A. That had been done with a view to mislead the millions of customers of the plaintiff's products so that they could be misled into buying the defendant's product, thereby causing grave damage to the reputation and the goodswill of the plaintiff. As such malpractice had been indulged by a number of small manufactures like the defendant in August, 1989 the plaintiff was forced to conduct an education campaign through the media to ward the public of dealers in fertilizers trading in false Trade Marks similar to the Trade Mark/name of the plaintiff. No specific name was referred in the campaign. The campaign appears to have been understood by the defendant himself to be referring to the dealers of the kind of the defendant. The defendant through counsel by the letter dated 5.9.1989 has raised an issue that the plaintiff by this campaign malaigning them and has called upon the plaintiff to desist from continuing the same and demanding damages for the same. Such a case is deliberate violation of the registered Trade Mark and copyright and challenging the threatening the owner of the registered trade mark and copyright. In view of the attitude of the defendant in threatening the plaintiff after committing the infringements, the plaintiff has no option except to file the suit for infringement. Their right in their two registered Trade Marks and the copyright has to be protected before further damage is caused. 5. The conduct of the defendant in infringing the plaintiff's two registered trade marks amounts simultaneously the commission of the crime under sections 78 and 79 of the Trade and Merchandise Marks Act, 1958, and similarly the infringement of plaintiff's copyright in the work is a crime under section 63 of the Copyright Act, 1957. 6. 5. The conduct of the defendant in infringing the plaintiff's two registered trade marks amounts simultaneously the commission of the crime under sections 78 and 79 of the Trade and Merchandise Marks Act, 1958, and similarly the infringement of plaintiff's copyright in the work is a crime under section 63 of the Copyright Act, 1957. 6. The plaintiff has been manufacturing and marketing their product since 1971 and since then they have been adapting the same Trade Mark style as in M.O. No. 1. On the other hand, the defendant is a recent entrant. If the plaintiff fails ultimately in the suit, the plaintiff is in a position to compensate for any loss that may be suffered by any order of injunction. On the other hand, the loss that will be suffered by the plaintiff on account of the activities of the defendant unchecked can never be compensated. Hence it has been prayed for an order of interim injunction restraining the respondent from committing any infringement of the copyright of the plaintiff in the artistic work found in M.O. 1 by displaying printing or causing to be printed the impugned work as found in M.O. 2 or any other work or creation or using such work in any phamplet, wrapper, containers, bags etc. in the course of the trade which is a colourable imitation of the plaintiff's artistic work displayed in M.O. No. 1 to the plaint till the disposal of the suit. 7. Similar affidavit has been filed in Application No. 4896 of 1989 also praying for an interim injunction restraining the respondent from committing any infringement of the copyright of the plaintiff in the artistic work found in M.O. 1 by displaying printing or causing to be printed the impugned work as found in M.O. 2 or any other work or creation or using such work in any phamplet, wrapper, containers, bags etc. in the course of the trade which is a colourable imitation of the plaintiff's artistic work displayed in M.O. 1 to the plaint till the disposal of the suit. 8. in the course of the trade which is a colourable imitation of the plaintiff's artistic work displayed in M.O. 1 to the plaint till the disposal of the suit. 8. The respondent in the counter filed by the Director of the company has contended that what has been contended in the written statement has to be read as part and parcel of the counter-affidavit and it has been further stated that the allegations made in the affidavit filed by the petitioner are being denied and according to the counter, the petitioner has referred to M.O. 1 and M.O. 1 is not their registered Trade mark and the petitioner is trying to confuse the registered trade mark with M.O. 1. The petitioner's registered trade mark and M.O. 1 have lot of differences. The registered trade mark does not mention the colour or what "Vijay" means. It does not mention what is the product of Madras Fertilizers. It does not also mention what are ingredients of the product. It does not also mention whether it is a complex fertilizers or fertlizer mixure. The registered trade mark is completely in England and from the registered trade mark the farmers will not be able to understand anything. Even the qualified man will not be able to understand anything from the registered trade mark, as it has mentioned nothing. 9. The word 'Vijay' is in blocks. Vijay means victory. That word could be used by everybody not only in business but in so many walks to life. It could mean victory to Madras Fertilizers. There is no mention of any complex. Even according to the petitioner, Trade mark 331470 class-I Part A is a trade mark only in respect of area and fertilizer. The petitioner stating that it is a picture of farmer is not correct because the picture does not depict a farmer. It could also mean that the person VIJAY is contesting for election. 10.With regard to M.O. 1 and M.O. 2, M.O. 2 is yellow in colour and it is made of High Density Poly Ethyline container. The colour is very bright and one can identity the bag even from a distance of 200 metres. The bag is uniform in texture and moisture proof and also water proof and it is smooth and glossy. The size of the respondent's bag/container M.O. 2 is 20/36 ". The colour is very bright and one can identity the bag even from a distance of 200 metres. The bag is uniform in texture and moisture proof and also water proof and it is smooth and glossy. The size of the respondent's bag/container M.O. 2 is 20/36 ". The petitioners' bag is made of gunny bag and light brown in colour. The bag will not be visible from a distance of 25 metres. It has got a crude and rough finish. The size is 22/36" * . It is not waterproof. M.O. 1 is divided into three parts by draw of two lines across and M.O. 2 is also divided into three parts by draw of two lines. The petitioner's registered trade mark is something like the advertisement of Air India Maharaja. 11. Document No. 3 shows the person who neither looks like a Maharaja or farmer. It shows that it is divided into three compartments. The first compartment showing the Maharaja is three times as big as second compartment and the second compartment has the word VIJAY. The third compartment contains the word Madras Fertilizers. It is all in black. M.O. 2 is divided into 3 portions. The first portion shows a farmer with a plough on his left shoulder holding the plough with his left hand. He has a farmer's turban and a moustache. He has also got upper cloth over his left shoulder and plough is resting on the upper cloth. The framer is giving a side pose. The defendant has actually taken the photograph of typical farmer and is utilising the same. If one looks at the petitioner's trade mark one can see that the person has got the big moustache like a goonda which overflows the lips. The headwear is definitely not like turban and it looks like a butler's cap or server's headwear as in Star Hotels. The person has got two hands folded as though he is requesting for a vote or asking for favour. The dress also looks like a jacket. On the whole the picture does not depict a farmer at all. 12. In the second part/compartment the petitioner has only works VIJAY and nothing more. The trade mark does not depict any colour except black large capital letters. The third compartment of the petitioner's trade mark only shows "Madras Fertilizer" in black. The dress also looks like a jacket. On the whole the picture does not depict a farmer at all. 12. In the second part/compartment the petitioner has only works VIJAY and nothing more. The trade mark does not depict any colour except black large capital letters. The third compartment of the petitioner's trade mark only shows "Madras Fertilizer" in black. Anyone looking at that cannot say from the trade mark to which product it reffers. On the other hand, looking at M.O. 2 it is very clear the second compartment shows as follows : "JAI VIJAY, STD. MIXTURE No. 5, N.P.K. Rc. No. 5 Net Wt. W.P. 50 Kg. Branch : Mysore, Batch No. 17 17 17/89. In Kannada language "JAY VIJAY" is mentioned. That compartment is self explanatory. The third compartment of M.O. 2 which is in black clearly shows by whom the materials as manufactured and the address of the manufacturer of the said fertilizer. If the respondent wanted to pass of as the petitioner then he need not give his address. The very fact that he has given his detailed address shows that he does not want to mislead or take the consumers unawares. It also shows that he does not want to pass of as the petitioner. 13. As the respondent comes from a national mined family, the product has been named as JAI VIJAY following JAI KISAN, JAI JAWAN or JAI BHARATH. It is not correct to state that the respondent is using the trade mark only for misleading the millions of consumers of the petitioner's product and the mark of the respondent cannot cause any damage to the reputation and to the good will of the petitioner. The respondent's product is of a very high quality and there is no infringement of any copyright or trade mark and there is no violation of sections 78 and 79 of the Trade Mark Act and section 63 of the Copyright Act. The respondent's activities have not affected the petitioner's right either civility or criminally. 14. The respondent's product is not deceptively similar to the registered trade mark and there is no act of infringement. There are vast difference in M.O. 1 and M.O. 2. The respondent's product is not identical with or deceptively similar to the trade mark of the petitioner. The respondent's activities have not affected the petitioner's right either civility or criminally. 14. The respondent's product is not deceptively similar to the registered trade mark and there is no act of infringement. There are vast difference in M.O. 1 and M.O. 2. The respondent's product is not identical with or deceptively similar to the trade mark of the petitioner. The respondent's trade mark does not resemble that of the petitioner and there is no passing off the goods. 15. The respondent has not committed any violation and there could be no question of causing any confusion as alleged by the petitioner. Hence it has been prayed that the application has to be dismissed. Interim orders already passed in A. Nos. 4895 and 4896 of 1989 have to be vacated. 16. The application has filed reply affidavit through the General Manager denying averments made in the counter affidavit filed by the respondent. It has been stated that with respect of the Trade mark registered in Part A it should be deemed to be infringed if anyone else uses without permission any Trade mark which is identical with or deceptively similar to the registered trade mark. The plaintiff in such a case need not further prove that the use of the infringing mark is likely to deceive or cause confusion. It is the plaintiff's case that the picture of the human figure in the registered trade mark is reproduced by the defendant in a deceptively similar manner. In the place of the plaintiff's expression 'VIJAY' in capital the defendant has reproduced the identical 'VIJAY' with the addition of 'Jai' in small letters. The defendant's Trade mark is a clear infringement of the plaintiff's Trade Mark No. 331470 in Class-1 and in Part A. 17. As for infringement of Copyright a mere look at the defendant's gunny bag will show that the artistic work of what constitutes the plaintiff's Trade Mark is reproduced substantially and in material particulars. Nobody could have conceived the defendant's picture without consciously copying the plaintiff's picture. As the period of 7 years have passed, its validity cannot be questioned now. The defendant has ignored the fact that the plaintiff/applicant is dealing with a registered trade mark registered since 12.12.77. The use of the word 'Vijay' for the products in Class-1 for fertilizers is the exclusive property by registration of the plaintiffs. As the period of 7 years have passed, its validity cannot be questioned now. The defendant has ignored the fact that the plaintiff/applicant is dealing with a registered trade mark registered since 12.12.77. The use of the word 'Vijay' for the products in Class-1 for fertilizers is the exclusive property by registration of the plaintiffs. As such the example of Jai Kissan, Jai Javan or Jai Bharat are irrelevant. The announcement in the Radio was to educate and warn the public against person like the defendant who have been infringing the Trade Mark and Copyright of the plaintiff. Counter contentions are not correct. 18. The point that arises for consideration in both the applications is as to whether the applicant/plaintiff is entitled to an order of temporary injunction as prayed for in the two applications pending disposal of the suit or the interim injunctions already granted in favour of the applicant/plaintiff are liable to be vacated and set aside as contended by the learned counsel for the respondent/defendant ? 19. The plaintiff manufacturing fertilizers at Madras has come forward with the case of infringement of the registered trade mark of the plaintiff bearing No. 331470 Class-1, Part A and also infringement of copyright in the artistic work of the plaintiff as contained in the picture in M.O. 1 and thus has prayed for the two reliefs. The plaintiff has stated that the registered mark in black and white consists of three parts. First part is the picture of a framer with a turban, moustache and hands folded. Second part consists of the word mark VIJAY in English word per se. The Third part is the address of the plaintiff written in black letter, Madras Fertilizers. The applicant/plaintiff has stated that they are manufacturing fertilizers and are selling them since 1974 and their product is popular in the market and the product is sold in bag with the Trade mark. Further, according to the applicant/plaintiff the consumes of the products are farmers and most of them are illiterate and are apt to be deceived by the false trade marks and in that connection the plaintiff wanted to educate the consumers on that matter and warn them of imitation and accordingly, through public media in the press and Radio the plaintiff acquainted the consumers. The consumers were advised to examine and carefully identify the plaintiff's brand and buy the product lest they should be buying the product of other people thinking that it is the product of the plaintiff. 18. After such attempt made by the plaintiff the Manager of the plaintiff-company at Bangalore had received a notice on behalf of the defendant referring to the advertisements made by the plaintiff and stating that though the plaintiff is at liberty to give such advertisement after due verification and confirmation against those who are unlawfully imitating the brand name or trade mark, the plaintiff has no right to falsely advertise against the lawful and bona fide manufacturers and seller of their product in their brand name and trade marks. Further, according to the plaintiff, the plaintiff was informed that their action was hasty and false and the unlawful but also against ethics of the trade and the plaintiff was called upon not to proceed with misleading advertisements against the defendant and give adequate compensation for the loss suffered by the defendant by such false advertisement. The plaintiff also had been threatened with legal action in the absence of reply within the stipulated time. 19. The plaintiff has taken up the stand that during the campaign of the advertisement there was no specific reference to the defendant or the defendant's product but yet they had chosen to send that notice and according to the plaintiff, the defendant had not only infringed the trade mark but also copies the distinct portions of the registered trade mark and also other distinctive features. Likewise the artistic work produced by the company which is the property of the plaintiff also has been copied and the defendant has imitated and thus infringed the copyright in the artistic work of the plaintiff also. 20. The respondent/defendant has contested the everments put forward by the petitioner and has stated that the applicant is trying to confuse the issue. According to the respondent, M.O. 1 is not the trade mark of the plaintiff. It has been pointed out by the respondent that there is no mention about the colour or the meaning of VIJAY and there is no mention about the product as such. Excepting stating Madras Fertilizers there is no distinctive particulars as regards Fertilizers and the whole trade mark is only in English. It has been pointed out by the respondent that there is no mention about the colour or the meaning of VIJAY and there is no mention about the product as such. Excepting stating Madras Fertilizers there is no distinctive particulars as regards Fertilizers and the whole trade mark is only in English. Even according to the registered trade mark of the plaintiff it is only in respect of Urea and Fertilizer. The picture in M.O. 1 is not that of a farmer. 21. Number of differences between M.O. 1 and M.O. 2 also have been pointed out stating that M.O. 2 of the defendant is yellow in colour and is made of High Density Poly Ethyline container whereas M.O. 1 is a gunny bag and the picture of the defendant could be identified even at a distance of about 200 meters. The size also vary and M.O. 1 is crude and rough one and is not waterproof. The person shown in M.O. 1 is like a Maharaja or a Buttler in a Star hotel and did not look like a farmer. On the other hand in M.O. 2 the farmer with a plough on his left shoulder holding the plough with his left hand. The farmer is having an upper cloth over the left shoulder and plough is resting on the upper cloth. It is the photograph of typical farmer, whereas the headwear in M.O. 1 picture is not like a turban, but it looks like a headwear on a server in a Star hotel and the person is also seen with folded hands as if he is requesting for a vote or asking for favour. The dress also looks like a jacket, and on the whole the picture does not depict a farmer at all. The word 'VIJAY' is not in any colour. On the other hand, in M.O. 2 the word 'JAI VIJAY' is added and there are other distinctive particulars about the contents of the bag. There is also mention about the company. In M.O. 2 the address of the manufacturer is also given and that will show that the respondent/defendant did not want to pass off anybody's goods as their own. Further, there words in Kannada in M.O. 2 bag and on the other hand, in M.O. 1 bag everything in English. There is also mention about the company. In M.O. 2 the address of the manufacturer is also given and that will show that the respondent/defendant did not want to pass off anybody's goods as their own. Further, there words in Kannada in M.O. 2 bag and on the other hand, in M.O. 1 bag everything in English. Thus, according to the respondent, there is no infringement of registered trademark and likewise there is no infringement of any copyright and no violation of sections 78 and 79 of the Trade Marks Act and section 63 of the Copyright Act. 22. Thus, the respondent has contended that their product is not deceptively similar to the registered trade mark of the plaintiff and there is no infringement having regard to the number of difference in M.O. 1 and M.O. 2. In such circumstances, it has been submitted that there is no question of passing off goods of respondent as that of the petitioner. 23. Under section 2(1)(v) of the Trade Marks Act, "trade mark" means - (i) in relation to Chapter X (Other than section 81) 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, and (ii) in relation to the other provisions of this Act, a mark used or proposed to be 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, either as proprietor or as registered user, to use the mark whether with or without any indication of the identity of that person and includes a certification trade mark registered as such under the provisions of Chapter VIII. Section 2(1)(v) defines registered trade mark which is actually on the register. As regards the applicant/plaintiff, the applicant has claimed that his trade mark is in respect of urea and fertilizer and it is registered bearing Registration No. 331370 Class - 1 Part A 12.12.1977. The said registered trade mark is in Black and while consisting of three parts. The first part is the picture of a farmer with a turban moustache and hands folded. Second part consists of the word mark VIJAY. The said registered trade mark is in Black and while consisting of three parts. The first part is the picture of a farmer with a turban moustache and hands folded. Second part consists of the word mark VIJAY. Third part is the address of the plaintiff written in block letter Madras Fertilizer. The plaintiff has claimed to have used the picture of the farmer with the word per se VIJAY from 1974 and they have claimed to have sold the fertilizers manufactured by them with the said trade mark. The plaintiff's trade mark is in the gunny bag in which the fertilizer is said to be contained. Inside of the gunny bag is made of white Polythene bag. Three parts are distinctive. In the first top portion figure of the man with the turban moustache and hands folded in seen. In the middle portion the word VIJAY in bold letters in Red colour in English is seen and the word VIJAY in capital in bold letters is seen and below that the word Complex NPK 17 17 17 is seen. On the left side VIJAY is written in Tamil, Malyalam, Hindi and Kannada. Net weight 50 kg. When packed and the bottom portion we find gross 50.5 kg. 50 kg when packed. Madras Fertilizer in English and below that there is family planning advertisement in Tamil. The respondent's bag is in yellow colour made of polythene and the topyportion consists of a figure of man with a turban with a cloth on the left shoulder on which he is placed plough. In the middle portion "Jay Vijay" in English is seen. Vijay prominently and Jay not so prominently and it is also written in Kannada in Red colour. Below that description of the fertilizers the words STD. Mixture No. 5 NPK 17 17 17, Net wt. W.P. 50 kg. are seen. In the bottom portion we find the address of the manufacturer Chaitra Fertilisers and Chemicals (P) Ltd. B-28 Industrial Estate, Yelahanka, Bangalore 560064. Through the bags are different design consisting of three parts with the man on the top, description of the fertilizer at the centre and description of the manufacturer at the bottom are seen, the general design is one and the same. The size of the respondent's bag which is yellow in colour is smaller than the size of M.O. 1 of the plaintiff. 24. The size of the respondent's bag which is yellow in colour is smaller than the size of M.O. 1 of the plaintiff. 24. The learned counsel for the respondent/defendant placing M.Os. 1 and 2 side pointed but as to how there are differences in the human figure in the top portion and the word VIJAY is different from the word "Jay Vijay". The learned counsel for the respondent pointed out that there are lot of differences even with regard to the figure at the top portion. The figure in the respondent's bag is substantially different from that of the applicant/plaintiff and it was submitted that the turban of the plaintiff's figure is not looking like a turban and it looks like a cap of a buttler in 5 star hotel and the turban of the respondent's bag is a really one and the farmer is shown having a plough. Like that with regard to other portions also differences that could be seen were pointed out. 25. Section 29(1) of the Trade and Merchandise Marks Act, 1958, is as follows :" * 29(1). A Registered trade mark is infringed by a person who, not being the registered proprietor of the trade mark or a registered user thereof using by way of permitted use, uses in the course of trade mark which is identical with, or deceptively similar to, the trade mark, in relation to any goods in respect of which the trade mark is registered and in such manner as to render the use of the mark, likely to be taken as being used as a trade mark. Under that section for an infringement the trade mark alleged to be infringed is to be identical with or deceptively similar to the trade mark in relation to any goods in respect of which the trade mark is registered and in such manner as to render the use of the mark likely to be taken as being used as a trade mark. The plaintiff as well as the defendant are selling the same commodity, namely Fertilizers and we find the composition given is NPK 17 17 17 in both the bags. As stated earlier the general design of the bag is the same, i.e. the human figure at the top, worn VIJAY and JAI VIJAY. NPK in the middle portion and the bottom portion description of the manufacture in both the bags. 26. As stated earlier the general design of the bag is the same, i.e. the human figure at the top, worn VIJAY and JAI VIJAY. NPK in the middle portion and the bottom portion description of the manufacture in both the bags. 26. Section 2(1)(d) of the Act defines "deceptively similar and it is as follows ; 2(1)(d)," 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" * Before an infringement it is not necessary that the infringing mark should be identical or similar without any differences, it is to be pointed out that the word VIJAY in capital letters is very prominent in the applicant's bag and in the respondent's bag the word VIJAY is prominent and the accompanying word JAI is not so prominent. With the said descriptive particulars it is quite possible for any farmer going to purchase fertilizers likely to be deceived by the bag of the respondent thinking that it is the bag of the plaintiff. 27. In the Text book by Narayana on Trade Marks and Passing off (3rd Edition) at page 668 it is stated as follows : "Common part highly distinctive : If a person has used some mark which is highly distinctive or some mark which has some highly distinctive part, and if somebody comes along and takes that highly distinctive mark and adds something to it or takes a highly distinctive mark or part of the mark and makes an addition or a substitution, then it may be possible that people will be confused and will think that the new mark indicates the same source of origin the same sort of connection as the old mark indicated. This sort of approach does necessarily involve some enquiry as to the inherent distinctiveness of the part which is common to both the marks under consideration". 28. The word" VIJAY" * is trade mark and that is distinctive in the plaintiff's bag and in the defendant's bag also the word VIJAY is distinctive and the word Jay are in smaller letters. As regards the human figure it is quite possible for anyone who may think that there had been change or quite possible one could remember the figure without a plough and with a plough. As regards the human figure it is quite possible for anyone who may think that there had been change or quite possible one could remember the figure without a plough and with a plough. Having regard to the well laid guidelines in the decisions on the point it may be stated that the approach made by the learned counsel for the respondent pointing out very many differences and submitting that anybody could place the two bags side by side and could distinguish is not a proper method. 29. The learned counsel for the applicant placed reliance in No. 1 Reports of Patent, Design, and Trade Mark Cases (Bryant & May Ltd. v. United Match Industries Ltd.) That was a case of action for infringement and passing off with regard to labels on match boxes and the defendant's labels in that case was held to be deliberately designed and adopted with the object of occasioning confusion. In that case labels dispute had also been printed and the lables were also differing in size and there were certain differences in the get up also. There were similarities in the defendant's label with that of the plaintiff's in that case. The learned Judge who decided the case having regard to the evidence and also examination of the boxes concerned came to the conclusion that not only confusion is possible but indeed probable. 30. The learned counsel placed reliance in the decision rendered by the Judicial Committee to the Privy Council reported in 1978 RPC 635 (Colgate Palmolive Limited v. K.F. Patron (Trading as The Caribbean Daily need Chemical works). That was a case of infringement of mark Colgate by Tringate. In that case the trial Judge held that there had been no infringement but at the appellate stage it has been pointed out that the conclusion drawn from the differences in two packages were not correct and from the examination of the packages it could be seen that what the respondent did was to borrow features from the packages, tubes and labels of the appellants and to kit them together as it were, into the name and label which he used as a trade mark. The ordinary purchaser of ordinary memory purchasing with ordinary caution could not be expected to make the close and careful side by side examination of the two products which the learned Judge obviously made to identify and highlight the differences which he enumerated. 31. It will be relevant to point out the observation at page 651 and it is as follows ; "The question for determination in an action for passing off by the use of a mark is whether the resemblance is likely to deceive. The authorities have established firmly that the persons to be considered in deciding this are all of those who are likely to become purchasers provided they use ordinary care and intelligence. Products are frequently remembered rather by general impression than by a particular feature and it is sufficient if deception is likely to arise. It must not be assumed that a very careful or detailed examination will be made, for on a "side by side" comparison such as was made by the trial Judge two products may differ materially whereas to the incautions purchaser or to the average casual purchaser the general set up and over all colour scheme could cause confusion in his mind and lead him to believe that the two products are of the same manufacturer." * The above observations, I feel, may go to show how such a careful examination having the objects side by side and coming to the conclusion is not proper. 32. The learned counsel for the applicant also placed reliance on the following decisions : (1) 1970 AIR(SC) 1649, 1969 (2) SCC 727 , 1970 (2) SCR 222 , 22 PTC 175, 1977 (1) SCJ 34 (2) 1972 AIR(SC) 1359, 1972 (1) SCC 618 , 1972 (3) SCR 289 , 22 PTC 346 (3) 1974 AIR(Madras) 7(4) 1974 AIR(Delhi) 12 (5) 1984 (4) PTC 66, 1984 AIR(Delhi) 265(6) 1987 AIR(Madras) 265. 33. In the decision Ruston & Hornsby Ltd. v. The Zimindara Engineering Co. 1970 AIR(SC) 1649, 1969 (2) SCC 727 , 1970 (2) SCR 222 , 22 PTC 175, 1977 (1) SCJ 34 : 1970 AIR(SC) 1649, 1969 (2) SCC 727 , 1970 (2) SCR 222 , 22 PTC 175, 1977 (1) SCJ 34) it was pleaded that 'Rustam' was not an infringement of 'Ruston' and stated that the words "Rustam India" were used. The trial Court dismissed the suit holding that there was no vasual or phonetic similarity between 'Ruston' and Rustam. The High Court held that there was deceptive resemblance between the words 'Ruston' and "Rustam" but held that the use of "Rustam India" did not constitute and infringement because the appellant engines were manufactured in England and the respondent's in India, and the suffix 'India' was sufficient warning that the engine sold was not the engine manufactured in England. But the Supreme Court allowed the appeal. The Supreme Court held that in an action for infringement when the defendant's trade mark 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 where the alleged infringement consist of using not the exact mark on the Register but something similar to it, the test of infringement is the same as in an action for passing off. In other words, the test as to the likelihood of confusion or deception arising from similarity of marks is the same both in infringement and passing off actions. It was also pointed out that if the respondent's trade mark was deceptively similar to that of the appellant the fact that the word INDIA was added to the respondent's trade mark was of no consequence and the appellant was entitled to succeed in its action for infringement of its trade mark. 34. In the decision Parle Products (P) Ltd. v. J.P. & Co. Mysore 1972 AIR(SC) 1359, 1972 (1) SCC 618 , 1972 (3) SCR 289 , 22 PTC 346 : 1972 AIR(SC) 1359, 1972 (1) SCC 618 , 1972 (3) SCR 289 , 22 PTC 346 ) the learned Judge of the Supreme Court have deal with the proper approach by Court for determining if one mark is deceptively similar to another. (Sec. 2(d). That case related to biscuit packets. The learned judges have held that the expression "deceptively similar" means a mark which so nearly resembles another mark as likely to deceive or cause confusion. 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. That case related to biscuit packets. The learned judges have held that the expression "deceptively similar" means a mark which so nearly resembles another mark as likely to deceive or cause confusion. 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. 35. In the decision K.R. Chinnikrishana Chetty v. K. Venkatesa Mudaliar 1974 AIR(Madras) 7) rendered by learned Chief Justice K. Veeraswamy and Raghavan, J. the learned Judges have held that the legend Sri Andal is deceptively similar to existing legend Sri Ambal and addition of word 'Radha' to it will not make slightest difference. 36. The decision Kedar Nath v. Monga Perfumery & Flour Mills, Delhi 1974 AIR(Delhi) 12) related to a case for infringement of trade mark and copyright with regard to Dhoop and Agarabthis. The plaintiff's trade mark was Sudershana. The plaintiff in that case held copyright registration relating to the artistic representation of its cartons pertaining to Sudershan Dhoop Batti. The defendant also was a manufacturer of dhoop and he had used the plaintiff's trade mark Sudershan and also alleged to have copied artistic design relating to the plaintiff's cartons and wrappers. The defendant introduced its dhoop with the trade mark Sudershan prefixed by the word 'Vijay' is small print on its cartons and wrappers. It was held that the impugned trade mark clearly infringed plaintiff's registered trade mark and that the prefix 'Vijay' was not likely to catch the eye of an ordinary purchaser who would easily be deceived into thinking that he was buying the plaintiff's product. 37. 1984 (4) PTC 66, 1984 AIR(Delhi) 265 (Glaxo Operations U.K. Ltd. v. Middlesex (England) and others). The facts related to similarity of cartons of Glucose-D and Glucose-N and in that case with regard to copyright it was held that copyrights exists whether registration is done or not. 38. 37. 1984 (4) PTC 66, 1984 AIR(Delhi) 265 (Glaxo Operations U.K. Ltd. v. Middlesex (England) and others). The facts related to similarity of cartons of Glucose-D and Glucose-N and in that case with regard to copyright it was held that copyrights exists whether registration is done or not. 38. In the decision Aravind Laboratories v. V.A. Samy Chemical Works 1987 AIR(Madras) 265) rendered by learned Justice Sengottuvelan and the learned Judge has laid down the test to determine deceptively similar with regard to infringement of trade mark. The learned Judge has held that overall aspects of two marks have to be considered. The case related to 'Eyctex' and 'Rani Eyevix'.s In that decision the learned Judge has elaborately dealt with number of English decisions which have dealt with the matter. The learned Judge has also referred to the Supreme Court Judgement in 1970 AIR(SC) 2062, 1969 (2) SCC 716 , 1970 (2) SCR 213 , 1982 (2) PTC 335, 22 PTC 88 (F. Hoffamannla Roche & Co. Ltd. v. Geoffery Manners & Co. Pvt. Ltd.) and 1972 AIR(SC) 1359, 1972 (1) SCC 618 , 1972 (3) SCR 289 , 22 PTC 346 (Parle Products (P) Ltd. v. J.P. and Co. Mysore). It had been observed therein that the true test is whether the totality of the trade mark is such that it is likely to cause deception or confusion or mistake in the minds of the persons accustomed to the existing trade mark. 39. The learned counsel for the applicant/plaintiff also pointing out the decision M/s National Carbon Co. (India) Ltd. v. Raj Kumar in 1954 AIR(Allahabad) 218) submitted that having regard to the balance of convenience being in favour of the plaintiff interim injunctions granted have to be made abolute. In the said decision the learned Judges of the Allahabad High Court have pointed out that when an interim injunction is sought during the pendency of the suit what was to be seen is, first whether a 'prima facie' case has been made out by the plaintiff in respect of his claim and secondly whether the balance of convenience demands that the injunction should be issued. The case related to a passing off action and it has been held that the mere fact that the defendant undertook to keep account would be no safeguard against possible injury to the plaintiff's trade. 40. The case related to a passing off action and it has been held that the mere fact that the defendant undertook to keep account would be no safeguard against possible injury to the plaintiff's trade. 40. On the other hand, the learned counsel for the respondent submitted the following decisions : (1) 1954 AIR(Allahabad) 570(2) 1967 AIR(Madras) 381 (3) 1978 AIR(SC) 1630. 41. The decision S.K. Dutt v. Law Book Co. 1954 AIR(All) 570) related to infringement of copyright. The learned counsel for the respondent pointing out section 51(b) of the Copyright Act and pointing out what had been observed in the said decision at paragraph 12 at page 574, submitted that for an infringement of a copyright there must be a substantial infringement of the work. The said decision related to a copyright of a book and I do not think that any of the observations made therein are helpful to the case of the respondent. 42. The decision The Daily Calender Supplying Bureau v. The United concern 1967 AIR(Madras) 381 : 1964 (2) ILR(Madras) 666) also related to infringement of copyright. The case related to oil painting of Lord Subramania in the picture of Kumaraungrparar. In that case substantial feature of the two pictures marked as M.Os. 1 and 2 had been taken into consideration and the defence of artistic work also has been considered and later section 14(1) (b)(i) also had been considered. The learned Judge have also referred earlier English decisions dealing with infringement of copyright and ultimately it had been held in that case that the defendant's picture reproduces substantial parts of the plaintiff's picture its plan, its design, its arrangement of all the important component parts. The learned counsel for the respondent submitted that in the instant case it is not like that, as regards human individual in the top portion. But having regard to the tests laid down in some of the English decisions, I feel the said contention of the learned counsel for the respondent could not be accepted. 43. 1978 AIR(SC) 1613, 1978 (4) SCC 118 , 1979 (1) SCR 218 , 22 PTC 802 : 1978 AIR(SC) 1613, 1978 (4) SCC 118 , 1979 (1) SCR 218 , 22 PTC 802 ) (R.G. Anand v. M/s Delux Films). 43. 1978 AIR(SC) 1613, 1978 (4) SCC 118 , 1979 (1) SCR 218 , 22 PTC 802 : 1978 AIR(SC) 1613, 1978 (4) SCC 118 , 1979 (1) SCR 218 , 22 PTC 802 ) (R.G. Anand v. M/s Delux Films). The case relied to an infringement of copyright in a play in a film ; pointing out what had been observed in the said decision that where a theme in the same, it is present and treated differently so that the subsequent works became a complete new work, no question of violation of copyright arises. But having regard to the general design and the feature in the instant case, I feel what had been observed in the above decision may not be helpful to the case. 44. In this case apart from what has been discussed above it may also be pointed out that the plaintiff appears to have educated the consumers of fertilizers through public media in the press and Radio, as according to the plaintiff, there had been recent entrants in the field of chemical fertilizers marketing their products with trade marks deceptively similar to the trade mark of the plaintiff. According to the plaintiff, the deceptive technique is in the making the picture of the farmer similar to that of the picture in the plaintiff's trade mark and also using the plaintiff's word mark VIJAY with minor prefix and suffix. It appears the plaintiff also warned the consumers to examine and carefully identify the plaintiff's brand and buy the product lest they should be buying the product of other people thinking that it is the product of the plaintiff. After such publication in the media, the Area Manager of the plaintiff company at Bangalore is stated to have received a notice from the advocate representing the defendant alleging among other things that though they are at liberty and have full right to give such an advertisement after due verification and confirmation against those who are unlawfully imitating their brand name or trade mark, they have no right to falsely advertise against the lawful and bona fide manufacturers and seller of their products in their brand name and trade marks. Further, it appears in the said notice it has been alleged to have been stated that such publicity through public media like A.I.R. as adversely affected the business of the defendant injuring the reputation of the defendant and his product and it caused a great financial loss. If what had been so observed is to be taken into consideration and if really there had been adverse effect of the business of the defendant after such advertisement, it will only go to show as to how the consumers had been misled to the effect that the product manufactured by the respondent/defendant was thought to be that of the plaintiff. 45. Thus, taking into consideration the facts and the principles laid down in the decisions placed before me I find that the applicant/plaintiff has clearly established a prima facie case for injunction pending disposal of the suit. Accordingly, I find the point in favour of the applicant. 46. In the result, the applications are allowed making the interim injunctions absolute till the disposal of the suit with costs. (one set). Held : That for an infringement of a trade mark, it is not necessary that the infringing mark should be identical or similar without any differences. The use of the word VIJAY on the defendants' bag is prominent whereas the accompanying word 'JAI' is not so prominent and with the said similar particulars it is quite possible for any farmer going to purchase fertilizers likely to be deceived by the bag of the Respondent thinking that it is the bag of the plaintiff. Moreover the Respondents allegation that the advertisements by the Plaintiff warning the consumers adversely affected the Respondent's business, shows as to how the consumers have been mislead to the effect that the product manufactured by the defendant was thought to be that of the plaintiff. Thus the plaintiff having clearly established a prima facie case for injunction pending disposal of the suit, the interim injunction is made absolute.