Judgment :- The Order of the Court was as follows : Original Application Nos. 84 of 1992, Application praying that this court be pleased to grant a temporary injunction, pending disposal of the suit restraining the respondent by itself its partners, proprietor, servants, agents, distributors, stockiests or any of them in any manner infringing the Applicant's Copyright in the artistic work 'DILKUSH' label having a red colour heart device with the word 'DILKUSH' written across. Original Application No. 85 of 1992 Application praying that this Court be pleased to grant a temporary injunction, pending disposal of suit restraining the respondent by itself, its partner/proprietor, servants, agents distributors, stockiests or any of them from in any manner passing off or enabling others to pass-off their goods as and for the goods of the Appellant by use of purchase complained of bearing the trade mark 'DILKUSH' and device of a heart in red colour in respect of tea or any deceptively similar mark or device, or in any other manner denoting a connection with the Applicant. Both the applications have been taken out by the plaintiff in C.S. No.105 of 1992. It will be convenient to notice the plaint averments for understanding the scope of the applications. I will refer to the parties in the applications by their nomenclature in the suit. The plaintiff is a well-known Company carrying on large-scale business in the manufacture, sale and export of Tea, Coffee and spices and other goods. The registered office of the plaintiff is located at Calcutta, and the principal place of business is said to be in Bangalore. The total turnover of the plaintiff's company for the year 1990-91 is said to be in the range of Rs. 650 crores. The plaintiff has a branch office at Madras and it is said to have 35 percent of the All India sales turnover. 2. The plaintiff is the proprietor of certain trade marks in respect of coffee blended with chicory coffee briquettes. The following are the registered trade marks of the plaintiff: "The Plaintiff is the proprietor of the trade mark DILKUSH and the device of a heart registered under number 397363 dated 6th November, 1982 in Class 30 in respect of coffee blended with chicory. The registration has been duly renewed and it is still valid and subsisting. This mark has been registered with MADRAS Trade Marks Registry. The registration has been duly renewed and it is still valid and subsisting. This mark has been registered with MADRAS Trade Marks Registry. The Plaintiff is the proprietor of the trade mark DILKUSH written within a brand across the device of a heart under No.8204 dated 14th November, 1942 in Class 30 in respect of coffee briquettes. The registration has been duly renewed and it is still valid and subsisting. The Plaintiff is the proprietor of trade mark DILKUSH in a label registered under number 85021 dated 24th August, 1943 in Class 30 in respect of coffee blended with chicory. The registration has been duly renewed and it is still valid and subsisting. The Plaintiff is the proprietor of the trade mark DILKUSH with the device of a heart registered under number 309908 dated 11th November 1975 in Class 30 in respect of coffee. The registration has been duly renewed and it is still valid and subsisting." 3. It will be seen that the above registration are inter-associated. The plaintiff claims that the essential feature of all the above registrations is the trade mark 'DILKUSH' written across a heart device. The plaintiff claims to be using the trade marks in respect of coffee from the year 1943. In or about August, 1990, the plaintiff started using the trade mark 'DILKUSH' with the device of a heart in respect of tea also. The artistic work of a pouch having a distinctive colour scheme and get up containing the device of a heart in red colour and the trade mark 'DILKUSH' written across is said to have been created by an employee of the plaintiff. The plaintiff's name Brooke Bond and its House Marks leaf device and the words "Dust Tea" are written in white letters. The plaintiff claims to be the proprietor of the copyright in the artistic work of a distinctive pouch containing the device of a heart in red colour and the word 'DILKUSH' written the device of the heart. This artistic work is said to have been published in August, 1990. 4. The said trade mark has become distinctive and is exclusively associated with the plaintiff's goods. While so, in or about January, 1992, the plaintiff came to know that the defendant was selling Tea under an identical trade mark 'Dilkush' and device of heart in red colour. This artistic work is said to have been published in August, 1990. 4. The said trade mark has become distinctive and is exclusively associated with the plaintiff's goods. While so, in or about January, 1992, the plaintiff came to know that the defendant was selling Tea under an identical trade mark 'Dilkush' and device of heart in red colour. It is stated that the defendant has only one sales outlet and the area of the defendant's sale of tea is confined to Kalyan Town. It is admitted that the trade mark 'DILKUSH' Tea is written in Marathi language. It is the case of the plaintiff that the defendant has deliberately adopted a similar label with the identical trade mark 'DILKUSH' and a device of a heart. The plaintiff calls the action of the defendant as a slavish imitation of the plaintiff's trade mark. In respect of tea the plaintiff states that they have been using the trade mark 'DILKUSH' and a device of the heart from August, 1990 onwards. The action of the defendant amounts to passing off their goods as goods of the plaintiff by adopting the trade mark 'DILKUSH' and a device of a heart in red colour. The plaintiff is said to have suffered and is likely to suffer loss in trade and reputation on account of wrongful activities of defendant. The plaintiff has therefore, sought for a perpetual injunction restraining the defendant in any manner infringing the plaintiff's copyright in the artistic work 'DILKUSH' label having a red colour heart device with the word 'DILKUSH' written across, a perpetual injunction restraining the defendant from passing off their goods as the goods of the plaintiff, for accounts, for the destruction of the goods with the infringing trade mark Application No.84 of 1992 is for a temporary injunction restraining the respondent from infringing applicant's copyright in the artistic work and Application No.85 of 1992 is for a temporary injunction restraining the respondent from passing off their goods using by infringing the trade mark. 5. The respondent/defendant has filed a detailed counter-affidavit to the said applications. The respondent is a Proprietary concern of which the deponent of the counter-affidavit is the sole proprietor. The deponent is a partner of the firm M/s. DILKUSH TEA DEPOT, a registered partnership firm carrying on business at the Kalyan Town. 5. The respondent/defendant has filed a detailed counter-affidavit to the said applications. The respondent is a Proprietary concern of which the deponent of the counter-affidavit is the sole proprietor. The deponent is a partner of the firm M/s. DILKUSH TEA DEPOT, a registered partnership firm carrying on business at the Kalyan Town. The said firm had been doing business in packing and marketing tea since the year 1962. From the year 1962 they have been marketing their goods in the name of 'DILKUSH'. In June, 1988, the defendant started selling tea in pouches under the name 'DILKUSH'. The said pouches were designed by a professional artist. The name 'DILKUSH' is in Marathi language because the business of the defendant is confined to Thane, Ratnagiri, Nasik and Raigadh Districts of Maharashtra State. So far as the allegations in the plaint, it is stated that the registered trade mark contained a disclaimer so far as the word 'DILKUSH' and the device of a heart is concerned. Admittedly, the plaintiff had been selling tea in the name of 'DILKUSH' only from August, 1990. It is contended that the mark 'DILKUSH' is associated with the tea sold by the defendant in the said Districts of Maharashtra State. The defendant claims to be a long, honest and concurrent user of the mark and, therefore, the plaintiff is not entitled to any relief. The following sentence in the counter affidavit is of some importance as will be seen later in the judgment: - "It would here be relevant to state that the Respondent runs a small business built-up painstakingly through hard industry. The only product sold by the Respondent is tea under the name DILKUSH. While so, the effect of any injunction would be literally close down the business of the Respondent who does not have the finance and infrastructure of the Applicant to sell the product under a wholly different name. While so, the balance of conveience would be against the continuance of the Order of Injunction." 6. It is also contended that the plaintiff has no cause of action within the jurisdiction of this Court. No part of the cause of action for the suit arise within the jurisdiction of this Court. Similarly defendant's residence and place of business are outside the jurisdiction of this Court. It is also contended that the plaintiff has no cause of action within the jurisdiction of this Court. No part of the cause of action for the suit arise within the jurisdiction of this Court. Similarly defendant's residence and place of business are outside the jurisdiction of this Court. The plaintiff has apparently sought to rely on Section 62 of the Copyright Act, 1957, only for the purpose of filing the suit in this Court. According to the defendant, there is no breach of provision of the Copyright Act. It is only with a view to harass the defendant that the suit has been filed in this Court. A similar attempt of the plaintiff in C.S. No.79 of 1989 to get a decree against the Balaji Tea India Private Limited was rejected by this Court on 18-7-1989. As in the said case the plaintiff is now invoking Section 62 of the Copyright Act and Clause 14 of the Letters Patent to sustain their suit in this Court. 7. The defendant denies that the plaintiff is the proprietor of any copyright in artistic works. In any event under Section 15 of the Copyright Act the right, if any, ceases to exist after the label or wrapper had been produced for more than 15 times by the industrial process. It is pointed out that the goods Tea and Coffee are of different description. So far as Tea is concerned the defendant is a prior user of the word 'DILKUSH'. In fine, the defendant denies the infringement of any trade mark or alleged acts of passing-off by the defendants. 8. Mr. R. Krishnamoorthy learned counsel for the plaintiff/applicant contends that the plea based on jurisdiction and the reliance of the defendant/respondent in the judgment of Srinivasan, J. in BROOKE BOND INDIA LIMITED v. BALAJI TEA (INDIA) LIMITED (1989-2 Law Weekly 551) by submitting that the said judgment has been appealed against, and the appellate court has also granted a stay of operation of the said judgment. So far as the reliance placed on Section 15 of the Copyright Act, he relies on Section 2(5) of the Designs Act to suggest that Section 15 of the Copyright Act will not apply to the facts of this case. The argument is that the plaintiff claims a right only in the artistic work created by their employee. So far as the reliance placed on Section 15 of the Copyright Act, he relies on Section 2(5) of the Designs Act to suggest that Section 15 of the Copyright Act will not apply to the facts of this case. The argument is that the plaintiff claims a right only in the artistic work created by their employee. Section 15(2) of the Copyright Act says that the copyright in any design which is capable of being registered under the Indian Designs Act, but which has not been so registered, shall cases as soon as any article to which the design has been applied has been reproduced more than 50 times by an industrial process by the owner of the copyright or with his licence, by any other person. But the plaintiff has not produced any material to show that the artistic work has been registered under the Indian Designs Act, 1911. 9. Before dealing with the merits of the case it would be better to dispose of the plea of jurisdiction and the applicability of the Copyright Act. It is clear from a reading of the plaint that the plaintiff is invoking the Copyright Act with the sole object of taking umbrage under sub-section (2) of Section 62 of the Copyright Act. It is only the sub-section (2) of Section 62 which enables the plaintiff to file the suit within the local limits of whose jurisdiction the person instituting the suit, resides or carries on business. Clause 14 of the Letters Patent enables the plaintiff to join the different causes of action in one suit. This is precisely the manner in which the plaintiff filed the suit in C.S. No.79 of 1989, which was the subject matter of 1989 II Law Weekly, 551 (cited supra). Srinivasan, J. has categorically held that the plaintiff in the said case was guilty of misuse and abuse of process of the court in filing the suit in Madras by invoking Section 62(2) of the Copyright Act. In that view of the matter learned Judge refused to give the equitable relief of injunction prayed for, pending disposal of the suit. I have perused the entire judgment and I am in respectful agreement with the learned Judge. In that view of the matter learned Judge refused to give the equitable relief of injunction prayed for, pending disposal of the suit. I have perused the entire judgment and I am in respectful agreement with the learned Judge. All the same, I am not inclined to rest my decision in this case on the basis of maintainability of the suit because admittedly, the said judgment is under challenge before an appellate court. I would therefore, proceed to decide this case as if the suit is maintainable. 10. Learned counsel for the plaintiff relied on several judgments to show that the registration of the trade mark in respect of coffee cannot be ignored in respect of sale of Tea. In any event the long use of the trade mark by the plaintiff in respect of Coffee vest them with a right to prevent unwary traders from using the same mark in respect of Tea as well. In this connection learned counsel for the plaintiff relies on the fact that class 30 under which the suit trade marks had been registered includes the goods Tea as well. Fourth Schedule to the Trade and Merchandise Mark Rules describes the classification of the goods under which the trade marks are registered. In clause 30 of the Fourth Schedule several goods are mentioned and both Coffee and Tea are the very first item in clause 30. As to how for the plaintiff can rely on the registered marks for the purpose of sustaining suit and applications, learned counsel relies on various decisions. It will be convenient therefore, to refer to the decisions before dealing with the case of respondent. 11. In N.S. THREAD CO. Vs. JAMES PHADWICK & BROS. it is laid down that the onus in a passing-off action rests on the plaintiff to prove whether the likelihood of defendant's goods being passed-off as the goods of the plaintiff. The considerations relevant in a passing off action are somewhat different than the considerations in an application for the registration of the mark under the Trade and Merchandise Marks Act, 1940. In PARLE PRODUCTS (P) LTD v. J.P. & CO. (1973 II S.C.J. 17), the distinction between an action for infringement of a trade mark and an action for passing-off has been brought out. The Apex Court has adopted earlier judgment of Supreme Court in DURGA DUTT v. NAVARATNA PHARMACEUTICAL LABORATORIES (1965-I S.C.R. 737). In PARLE PRODUCTS (P) LTD v. J.P. & CO. (1973 II S.C.J. 17), the distinction between an action for infringement of a trade mark and an action for passing-off has been brought out. The Apex Court has adopted earlier judgment of Supreme Court in DURGA DUTT v. NAVARATNA PHARMACEUTICAL LABORATORIES (1965-I S.C.R. 737). It is worthwhile to quote those passages. "While an action for passing off is a Common Law remedy being in substance an action for deceit, that is a passing off by a person of his own goods as those of another, that is not the gist of an action for infringement. The action for infringement is a statutory remedy conferred on the registered proprietor of a registered trade mark for the vindication of the exclusive right to the use of the trade mark in relation to those goods (vide section 21 of the Act). 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 the case of an action for infringement. 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. Expressed 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, packing 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." 12. I am of the opinion, that if this guide-line given by the Apex Court is kept in mind it would be easy to dispose of the present applications. In FIRM B. DASS v. WATKINS M. & CO. I am of the opinion, that if this guide-line given by the Apex Court is kept in mind it would be easy to dispose of the present applications. In FIRM B. DASS v. WATKINS M. & CO. 1956 AIR(Punjab) 17) the plaintiff company were the importers of chaff-cutter knives with a figure of lion engraved thereon and the words "lion brand" underneath that figure. The defendant in that case started manufacturing chaff-cutter knives with a mark consisting of a lion within what is called a map of India and bore the words "lion brand" underneath that figure. The suit in that case was for infringement of the trade mark as well as an action for passing-off. It was held that the defendant's mark was colourable imitation of the plaintiff's mark. It was held that there was an infringement of the trade mark. N.E. STORES v. GENERAL ELECTRIC CO. 1944 AIR(Lahore) 386) is close to the facts of the present case. The plaintiffs in that case had registered the trade mark "Osram" with reference to the goods manufactured by them namely electric bulbs, wireless valves, photoelectric cells, dry cell batteries and a large variety of other electrical goods. The defendants in that case had started business as sellers of dry electric flashlight batteries by using the name "Osram" on their batteries. The Lahore High Court affirmed the proposition of law laid down by James L. J in (1880) 18 Ch-D. 3951 which is as follows :- "No man is entitled to represent his goods as being the goods of another man; and no man is permitted to use any mark sign or symbol device or other means, whereby, without making a direct false representation himself to a purchaser who purchases from him, he enables such purchaser to tell a lie or to make a false representation to somebody else who is the ultimate customer. That being, as it appears to me, a comprehensive statement of what the law is upon the question of trade mark or trade designation. That being, as it appears to me, a comprehensive statement of what the law is upon the question of trade mark or trade designation. I am of opinion that there is no such thing as a monopoly or a property in the nature of a copyright, or in the nature of a patent, in the use of any name, whatever name is used to designate, goods, anybody may use that name to designate goods; always subject to this that he must no, as I said, make directly or through the medium of another person, a false representation that his goods are the goods of another person." But the Lahore High Court held in that case as follows :- " In my opinion this contention is wholly devoid of force. If the trade mark "Osram" belongs to the plaintiffs and constitutes their property, it is open to them to sell their dry cell batteries under the trade mark "Osram". They may decide at any time to sell their dry cell batteries under the trade mark "Osram", and if the defendant are allowed to use the word "Osram" as their trade mark for dry cell batteries the plaintiffs would not be able to extend their business under the trade mark which belong to them to the line of batteries." Since in the present case the emphasis is more on a particular word namely "DILKUSH" the judgment of Patanjali Sastri, J. in SHANMUGHA NADAR v. SHANMUGHAVEL NADAR (1940 I M.L.J. 749) has some relevance. In that case it was found the defendant was using the name "Shanmugham" to deceive the public and pass-off his goods as that of the plaintiff's goods which were being marketed in the name of "Shanmugham". It was held that the dissimilarity in the packing to distinguish the defendant's beedies from that of the plaintiff's was of no consequence in as much as the name used by the plaintiff in that case had acquired a secondary signification as exclusively denoting the goods of a particular trader mere dissimilarity in get-up is immaterial and affords no protection. Accordingly an injunction was issued in that case. In M/s. BANGA WATCH CO. v. M/s. N.V. PHILLIPHS 1983 AIR(P&H) 418) the following were the facts :- "The plaintiff was manufacturing and selling a large range of engineering and electrical goods under the trade mark 'PHILLIPS'. Accordingly an injunction was issued in that case. In M/s. BANGA WATCH CO. v. M/s. N.V. PHILLIPHS 1983 AIR(P&H) 418) the following were the facts :- "The plaintiff was manufacturing and selling a large range of engineering and electrical goods under the trade mark 'PHILLIPS'. The defendant in that case had adopted the word 'Phillips' for their watches and clocks. One of the argument in that case was the registration of the plaintiff's trade mark was under a class of the Act which did not include watches and clocks. It was held in that case that the suit being an action for passing off and there was no explanation on the part of the defendant as to why he had chosen the name 'Phillips', for marketing their watches and clocks. Accordingly, an injunction was granted in that case." 13. In the case before me there is also argument that the word 'DILKUSH' is used by the plaintiff in the English language whereas the defendant is using the word 'DILKUSH' in Marathi language. In J.C. ENO LTD. v. VISHNU CHEMICAL CO. 1941 AIR(Bombay) 3) it was held that the work 'falaxar' was a Marathi equivalent of the words "fruit salt" and that therefore, the defendants in that case could be restrained from using the same because the words 'fruit salt' in English language had become distinctive of the plaintiff's goods and the use of word in any other language might be liable to cause deception. It was also held in that case that the get up of defendants' goods were found to be a colourable imitation of the plaintiffs' goods. In BATA INDIA LTD. v. M/s. PYARE LAL & CO. 1985 AIR(Allahabad) 242) the defendants were injuncted from using the mark 'Batafoam' in the manufacture of mattresses, sofa cushions and other articles. The plaintiffs in that case who were well known manufacturers of shoes and rubber products in the name of 'Bata', and it was held that the fact that the plaintiff was not producing foam was not enough to hold that there could be no passing off action in respect of the user of the name 'Bata' to the products marketed by the defendants. 14. Let me now discuss the arguments of Mr. C.A. Sundaram for the defendant. In the first place it is argued that even according to the plaint the defendant has sales only in the Kalyan Town. 14. Let me now discuss the arguments of Mr. C.A. Sundaram for the defendant. In the first place it is argued that even according to the plaint the defendant has sales only in the Kalyan Town. There is no allegation in the plaint, says Mr. Sundaram that the plaintiff is a well known as traders in Tea with the marks referred to in the plaint in the town of Kalyan. If the plaintiffs are not well known in Kalyan Town, there is no question of any passing off action against the defendant insofar as Kalyan town is concerned. It is next pointed out that the defendant had been marketing Tea in Kalyan Town in the name of 'DILKUSH' written in Marathi language right from the year 1962. Further from the year 1988 they had been selling tea in pouches under the name of 'DILKUSH'. Therefore, the fact that the plaintiff had been selling tea in pouches from August, 1990, subsequent to the creation and adoption and use by the defendant, would not give rise to any passing off action. Mr. Sundaram also argues that the word 'DILKUSH' means "pleasing to heart". It is a common word and the fact that the defendant is using the word in Marathi language would not cause any confusion or deception in the minds of the public. Learned counsel also argues that there is no artistic work in the device of a heart and the endeavour of the plaintiff is only to bring the case within in Section 62(2) of the Copyright Act, and file the suit in Madras. 15. Referring to the registered trade mark adverted to in the plaint, it is argued that the first registration under No.397363 is only with reference to Coffee blended with chicory. It shows the device of heart with the words 'DILKUSH' written in English across the device. It has been made clear that the registration of the said trade mark shall give no right to the exclusive use of the word 'DILKUSH' and the device of the heart. The second registered mark bears the Number 8204 and it relates to coffee briquettes. It shows device of a heart with the word 'DILKUSH' written in English across the device. The next registration is under number 85021 dated 24-8-1943. It relates to coffee blended with chicory. The second registered mark bears the Number 8204 and it relates to coffee briquettes. It shows device of a heart with the word 'DILKUSH' written in English across the device. The next registration is under number 85021 dated 24-8-1943. It relates to coffee blended with chicory. In this registration there are various other figures with which we are not concerned. The word 'DILKUSH TABLETS' is mentioned in the registered trade mark. It is made clear that the registration of this mark shall give no right to the exclusive use of the word 'DILKUSH' of the device of a cup and saucer. The last of the marks bears the number 30908 dated 11-11-1975. This is in respect of coffee, mixture and coffee products. The mark comprises of the device of a heart with the word 'DILKUSH' written in English across the device. Here also it is made clear that the trade mark shall give no right to the exclusive use of the word 'DILKUSH'. Under such circumstances learned counsel for the defendant, points out that the pouches used by the defendant have different marks and the entire get up is different. The first striking feature is that the words are written in Marathi language and there is no chance of any unwary purchaser being deceived by the mark. The word in Marathi language are written in the device of a heart, but the entire background is different. While the plaintiff's device of heart contains bright white says emanating from the heart there is no such rays in the device of the defendant. The colour combination is totally different. I have no hesitation to hold that prima facie there is no infringement of the trade marks of the plaintiff. Nor is there any colourable imitation of the trade marks of the plaintiff. In coming to this conclusion I place strong reliance on the disclaimer contained in the respective registration which categorically state that there is no exclusive right to sue the word 'DILKUSH' or the device of the heart. If that is so, the case of infringement falls to the ground. 16. In coming to this conclusion I place strong reliance on the disclaimer contained in the respective registration which categorically state that there is no exclusive right to sue the word 'DILKUSH' or the device of the heart. If that is so, the case of infringement falls to the ground. 16. Coming now to the complaint of passing off the goods as if they are the goods of the plaintiff we have to notice the following circumstances: - The defendant has been using the Trade mark from 1962 or at least from 1988; whereas the plaintiff has commenced sale of tea with the suit trade marks only from August, 1990. We have already noticed that in a passing off action the defendant can escape liability if he can show that there is sufficient distinction between the get-up, packing and the writing on pouches. In other words, if the Court can come to a prima facie conclusion that the get-up, colour combination, and the writing and the marks on the pouches clearly distinguish the defendant's goods then there is no chance of unwary purchaser getting deceived or confused. Further in this case there is no proof that in the Kalyan Town itself the plaintiff has any market. Therefore, the question of passing off, will not arise unless evidence is let in at a later stage in the suit. In T.B. & SONS v. PRAYAG NARAIN 1940 AIR(PC) 86) the plaintiffs had brought an action to restrain the infringement of trade mark right and for passing off. The plaintiffs were manufacturers and sellers of cigarettes and of tobacco described as "Virginia Bird's Eye". They were sold in packets and tins bearing a mark the distinguishing feature of which, is the representation of an elephant. The defendant in that case were manufacturing and selling chewing tobacco three years before the action was brought. Both the packets and tins used by the defendant had the picture of an elephant on them not unlike the elephant used by the plaintiffs. There were differences in colour and the get up was also different. The defendant in that case were manufacturing and selling chewing tobacco three years before the action was brought. Both the packets and tins used by the defendant had the picture of an elephant on them not unlike the elephant used by the plaintiffs. There were differences in colour and the get up was also different. The contention of the plaintiff was that they had acquired a reputation in connection with the smoking tobacco and cigarettes sold under the elephant trade mark and use of the elephant on the defendant's chewing tobacco was calculated to lead persons buying that article to believe that it was manufactured and marketed by the plaintiff. No doubt this case was decided prior to the enactment namely, Trade and Merchandise Marks Act, 1940. The Privy Council held that the difference in the get up are not immaterial; for they must inevitably from an element in considering the question of probability of deception by the use of the mark. It was held that unless and until evidence was forthcoming that the public would be deceived the question of granting an injunction would not arise. It was held that persons exercising ordinary caution would not assume that the chewing tobacco sold by the defendant was manufactured by the plaintiff. The Privy Council upheld the decision of the courts below that the plaintiffs had not established their case. 17. In reply Mr. R. Krishnamurthy brings to my notice certain decisions which suggest that even if the two marks have many differences, if there is a single element which would cause deception, then the defendants should be restrained. He also suggests that the two marks should not be placed side by side to find out whether there are any differences in the design. In fact in N.S. THREAD CO. v. JAMES CHADWICK & BROS. 1951 AIR(SC) 357 cited supra) it has been pointed out that the real question is to decide, is to see as to how a purchaser, who must be looked as an average man of ordinary intelligence, would react to a particular trade mark. One must ask the question as to what association he would form by looking at the mark with the goods which are manufactured by a particular proprietor. One must ask the question as to what association he would form by looking at the mark with the goods which are manufactured by a particular proprietor. Similarly, it has been held that when the plaintiff had acquired a reputation in respect of certain goods under a particular trade mark or a name, they have a right to restrain the defendant from using the trade mark or name which is identical with or similar to that of the plaintiff's marks and such a right extends not only to the particular goods held by the plaintiff but also to cognate classes of goods. The question again, is whether an unwary customer will mistake the defendant's goods for those of the plaintiffs. 18. Having all these broad principles of law in mind I come to the conclusion that prima facie there is no infringement by the defendant of the trade mark of the plaintiff. So far as passing off the goods, I am firmly of the view, that no material has been placed before me to suggest that the tea marketed by the defendant under his device and mark would be mistaken for the Tea marked by the plaintiff under the name 'DILKUSH' written in a device of a heart. I have already pointed out the very many differences in the two marks which would enable the ordinary purchaser to distinguish the two goods marketed by the plaintiff and the defendant. Apart from this fact, that there is do evidence that the plaintiff's goods are marketed in the town of Kalyan. There is no chance of an unwary purchasers mistaking the defendant's goods for those of the plaintiff's. The defendant is in the market at least from the year 1988 and has established some reputation in the four districts of Maharashtra State. Therefore, there is no chance of the plaintiff's suffering loss if the injunction is refused. 19. Before leaving the case I must also refer to the balance of convenience. It is in this connection that I had extracted a passage from the counter-affidavit to the defendant, So remind oneself, the defendant has pleaded that as injunction would literally close down its business and that he does not have the finance and infrastructure to sell the product under any other name. While the applicant is claiming an all India market, the respondent is restricted to four districts in Maharashtra State. While the applicant is claiming an all India market, the respondent is restricted to four districts in Maharashtra State. I am certainly of the view that the balance of convenience is in favour of the defendant/respondent. I have also noticed the fact that the applicant is not likely to suffer any loss or damage on account of sales made by the defendant. 20. For all the above reasons, the applications are dismissed. Having regard to the fact that the defendant/respondent has been brought to this Court all the way from Kalyan town in the State of Maharasthra, I am inclined to award costs in favour of the respondent. The applicants are directed to pay a sum of Rs.5, 000/- as and by way of costs in these two applications.