JUDGMENT J. B. Koshy, J. - Appellants herein are the defendants in O.S. No. 2/88 on the file of the District Court, Kozhikode. The suit was filed by the respondents carrying on business in dairy products for a permanent injunction restraining the appellants from selling or marketing their goods by use of any trade mark containing 'Nambisan's/Nambeesan' and/or containing trade mark similar or identical to or deceptively similar to that of the respondents trade mark. The respondents herein were the plaintiffs in O.S. 2/88. The 1st plaintiff is company registered under the Indian Companies Act. The 2nd plaintiff is a registered partnership-firm registered under the Indian Partnership Act. 2. According to the plaintiff averments, over 50 years back, late Sri M. Krishnan Nambisan started the manufacture, production, marketing and sale of milk products like butter, Ghee, and thick butter milk, under the name and style of 'Nambisan's D.V. Diary Farm'. Within three or four years of starting the concern, the business, became so successful and popular and the sole proprietary concern was converted into a partnership business taking his sons as partners. Thereafter, in 1965, 'Nambisan's Dairy Pvt. Ltd. was formed and the firm 'Nambisan's D.V. Dairy Farm continued as before. Ever after the death of Sri Krishnan Nambisan, the other directors and partners of the company and firm, continued. Manufacture and production of the milk products like butter, Ghee and thick butter milk have been done in the name of the Private Limited company and marketing was done by the firm 'Nambisan's D.V. Diary Farm', the second plaintiff. The plaintiffs and prior to that their founder has been manufacturing, distributing and selling the milk products like butter, Ghee and thick butter milk for over half a century continuously and they were selling the products under the name and style of 'Nambisan's Ghee', 'Nambisan's butter' and 'Nambisan's thick butter milk' and with the label inscribing the same through their distributors and agents etc. in the State of Kerala, Karnataka and Tamilnadu. They were also exporting with the said label and name and style, Ghee and butter to Andamans. in the State of Kerala, Karnataka and Tamilnadu. They were also exporting with the said label and name and style, Ghee and butter to Andamans. In 1965, the 1st plaintiff-company had registered under the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as "The Act") with the Registrar of Trade Marks of their products butter, Ghee and other dairy products, their distinctive trade mark 'Nambisan's' and with the mark and emblem prepared and developed by the plaintiffs. According to the plaintiff, their dairy products are popular and well-known in the market for its excellent purity and quality of the stuff. This trade mark and trade name of the plaintiffs used by the plaintiffs are so popular and it will indicate that the products are that of the plaintiffs. Quality and standard maintained by the plaintiffs for their products are an asset of immense value to the plaintiffs. It was also contended that in the plaint that the general public on seeing the trade mark 'Nambisan's' would accept and are likely to consider and treat the products only as that of the plaintiffs as their products attained distinctiveness. Annual sales turnover of the products of the plaintiffs exceeds Rs. 1 crore for the past many years and every year it is on the increase. The 1st defendant in the suit (1st appellant in this appeal) was Depot-in-charge for more than 15 years and mostly working in Calicut City managing the Calicut Depot of the second plaintiff wherein the products of the plaintiffs like 'Nambisan's butter', 'Nambisan's Ghee' and 'Nambisan's thick butter milk' were being sold. People are mostly carried away by the word 'Nambisan's' as it was the name used and known in the market for the products of the plaintiffs. The 1st defendant resigned his post from the employment of the second plaintiff. Therefore, he, alongwith his wife (second defendant in the suit), started the dairy farm under the name and style "Nambeesan Dairy" and ten days before filing the suit the plaintiffs saw a Board put up in front of his shop in English and in Malayalam and they were selling butter, Ghee and thick butter milk as Nambeesan Butter, Nambeesan Ghee and Nambeesan thick butter milk clearly imitating the plaintiff's name. According to the plaintiff's defendants were using the labels also deceptively similar to that of the plaintiffs. According to the plaintiff's defendants were using the labels also deceptively similar to that of the plaintiffs. The said acts caused damage to the plaintiffs business and income and profit therefrom as well as loss in reputation in trade to the plaintiffs. It was also alleged that defendants were selling inferior and poor quality products in the market as that of the plaintiffs by employing deceptive and illegal methods. It was further alleged that the defendants are continuing to do the same inspite of the notice given to them. Therefore, the suit was filed for an injunction restraining the defendants, their agents, dealers, employees, stockists, distributors, sellers and persons directly or indirectly associated and/or connected with the defendants by a perpetual injunction from selling and/or marketing their goods by use of any trade mark containing 'Nambisan's/Nambeesan' and/or containing trade mark similar to that of the plaintiffs' trade mark and also from using the name board with the inscriptions and writting 'Nambeesan Dairy' or Nambisan' Dairy.' 3. A detailed written statement was filed by the defendants. According to appellants/defendants, late Sri Krishnan Nambisan started the business in a very small way and the plaintiff's business was known as 'Nambisan's D.V. Dairy Farm' and denied the allegation that milk products were being sold by the plaintiffs for over half a century under the name and style of 'Nambisan's. It was also stated that the 2nd defendant belonged to the Nambisan community and second defendant is the daughter of late T. H. Narayanan Nambisan and that community used to do 'Kazhakam' works in the temples, by supplying Pooja materials like garland, oil, butter etc. It is for that reason, the word 'Nambeesan' is used by the defendants. Since the second defendant is the wife of the 1st defendant and daughter of late Narayanan Nambisan, the word Nambeesan is used by the defendants. It was also stated that there is no passing off the goods by the defendants and there is no reason for that also. Plaintiffs have also not sustained any monetary loss or reputation. The emblem used by the defendants indicates 'GK'. The first syllable is that of the 2nd defendant (G of Geetha) and the other syllable is that of the 1st defendant (K of Krishnan). Late Sri Narayanan Nambeesan was also an employee of the plaintiffs for decades. Plaintiffs have also not sustained any monetary loss or reputation. The emblem used by the defendants indicates 'GK'. The first syllable is that of the 2nd defendant (G of Geetha) and the other syllable is that of the 1st defendant (K of Krishnan). Late Sri Narayanan Nambeesan was also an employee of the plaintiffs for decades. His services were illegally terminated and cases were pending in the High Court of Kerala until his death. Finally, the amount due to him was paid to his widow and children. The 1st defendant was forced to leave the service of the plaintiffs. The first defendant had experience in the trade of milk products and the defendants started the business by name 'G. K. Nambeesan Dairy'. When the defendants were gradually able to build up their business, only out of malice to the defendants the suit was filed. It was also stated that the trade mark 'Nambisan's was used only from 1980. The original trade mark having been voluntarily given up, changed and altered by the plaintiffs, they cannot claim that as their trade mark. It was further stated that the plaintiffs have not adopted or accepted any particular colour which has acquired a secondary meaning and there is no distinctiveness obtained for the alleged trade mark. The registration of their trade mark was not renewed. The statement that the plaintiffs' products were popular and was also of good quality were also denied. It is also stated that milk products were also purchased by the plaintiffs and sold and there were complaints regarding the quality of the goods. It is also stated that the 1st defendant is not running a Dairy Farm. He is running a business under name and style of 'Nambeesan'. There is an emblem with an inscription 'GK' and the mark 'GK' is shown above the word 'Nambeesan'. They are only purchasing butter, Ghee and thick butter milk from other places and selling the same and they are not using the word 'Nambisan's'. The layout, getup, colour scheme etc. are different. It is also stated that the name on a containers and labels of the plaintiffs is written in English. A sizable section of the public who purchase the goods are not conversant with English and the defendants are not passing off their products as that of the plaintiffs. No deceptive methods are adopted by the defendants. are different. It is also stated that the name on a containers and labels of the plaintiffs is written in English. A sizable section of the public who purchase the goods are not conversant with English and the defendants are not passing off their products as that of the plaintiffs. No deceptive methods are adopted by the defendants. No purchaser will believe that the products sold by the defendants is a product of the plaintiffs and their products are better than that of the plaintiffs. It is also stated that several persons belonging to the Nambisan community are selling milk products under the name and style of Nambisan's and the plaintiffs have no cause of action. There is no similarity between the plaintiffs' mark defendants' mark either visually, phonetically or otherwise. There is no imitation of the plaintiffs-mark. The marks are not identical and their marks are not deceptively similar to that of the registered mark of the plaintiffs and the plaintiffs are not entitled to get any injunction for passing off. 4. Three witnesses were examined on the side of the plaintiffs. PW 1 is the Manager of the firm. He deposed regarding the formation of the business by late Krishnan Nambisan in the year 1932 and registration of the Private Ltd. Company in the year 1953 and growth of the company and regarding marketing of its products as Nambisan's butter, Ghee and butter milk, PW 2 is a dealer in Kozhikode. According to him, he had been purchasing and selling products of the plaintiffs for more than 35 years. He stated that the products are 'Nambisan's Ghee', 'Nambisan's butter' and 'Nambisan's butter milk'. The word 'Nambisan's' is written in the wrappers, containers and pouches in which the various products are being supplied. He also deposed regarding similarity of marks in the products manufactured by the plaintiffs with the products of the defendants. Evidence will go to show that for several years, the word 'Nambisan's' was used by the plaintiffs and it has acquired distinctiveness and people who purchased the articles associated with the word 'Nambisan's' with the products manufactured by the plaintiffs. PW 3 is an agriculturist and a consumer in Kozhikode. He also stated that if the word 'Nambisan's' is seen people will think that the articles are those manufactured by the plaintiffs and he insisted on purchasing products of the plaintiffs. PW 3 is an agriculturist and a consumer in Kozhikode. He also stated that if the word 'Nambisan's' is seen people will think that the articles are those manufactured by the plaintiffs and he insisted on purchasing products of the plaintiffs. He also stated that he was not aware of any other company in the name Nambeesan was making similar products. He purchased 200 grams of Ghee, but the quality was bad and he complained to the Nambisan's Dairy Department and after examining the carton, it was found that it was not their products as above the word 'Nambeesan' 'GK' was written. 5. The defendants examined four witnesses to prove the contentions in the written statement. 1st defendant has deposed that the word 'Nambeesan' was used by them since the 2nd defendant belongs to the Nambisan community. He reiterated the contentions in the written statement. It was also mentioned by the other defence witnesses that there are other people marketing products with the name 'Nambisan'. Containers were produced to show that others are also doing the business in milk products with the same name. It is also deposed that the word 'GK' distinguish their products. It was further deposed that the products of the plaintiffs are inferior in quality. They also tried to prove the same by producing letters of an employee to the plaintiffs. DW 2 has been examined to prove that he has been purchasing goods manufactured by the defendants from 1959 onwards. According to him, he is running a business at Kanhangad and the licence is in the name of his father. His evidence was not considered as correct by the District Court as no independent evidence is adduced to prove that DW 2 has got any anything to do with the business which is said to be carried on at Kanhangad and even according to the defendants, their business was stated only in 1988. But, DW 2 has stated that he is purchasing the goods manufactured by the defendants from 1959 onwards. DW 3 was examined to prove that plaintiffs had been purchasing milk products from several places and that several persons are selling milk products with the name Nambisan's. DW 4 has been examined to prove that he had been purchasing goods of the defendants from 1990 onwards and the quality of the goods was good. Exts. DW 3 was examined to prove that plaintiffs had been purchasing milk products from several places and that several persons are selling milk products with the name Nambisan's. DW 4 has been examined to prove that he had been purchasing goods of the defendants from 1990 onwards and the quality of the goods was good. Exts. A1 to A18 were marked by the plaintiffs as documents and Exts. B1 to B10 as documents of the defendants. There are two Commissioner's reports Exts. C1 and C2. Containers and other material objects were marked as M.Os. 1 to 16. 6. The following issued were framed by the learned District Judge : (1) Whether the suit is maintainable ? (2) Whether the plaintiff is the owner and proprietor of the registered trade mark as alleged in the plaint ? (3) Whether the said trade mark is still alive ? (4) Whether the infringement of trade mark alleged is true ? (5) Whether the act of passing off goods alleged is true ? (6) Whether there is any cause of action ? (7) Whether the plaintiff is entitled to the injunction prayed for ? (8) To what relief ? 7. The District Court, after considering the evidence found that on a comparison of the trade names used by the plaintiffs, namely, 'Nambisan's and the defendants, namely, 'Nambeesan' the only point of dissimilarity which could be noticed is the difference in spelling when it is written in English. It is written in Malayalam similarly. Phonetically they are similar. He also found that no acceptable evidence was adduced by the defendants to prove that the trade mark adopted by the plaintiffs has become so common with their goods. Mere neglect to proceed against some parties who uses the word 'Nambisan' does not necessarily constitute abandonment as it was not sufficient to affect the distinctiveness of the mark. Considering the above, it was found by the learned District Judge that the plaintiffs have succeeded in proving that the defendants have tried to pass off their goods as that of the plaintiff and the plaintiffs are certainly entitled to get a permanent injunction against the defendants. With regard to the maintainability of the suit, it is stated that this point was given up and no arguments were addressed by the Counsel appearing for the defendants regarding the maintainability of the suit. With regard to the maintainability of the suit, it is stated that this point was given up and no arguments were addressed by the Counsel appearing for the defendants regarding the maintainability of the suit. A decree was, therefore, passed for a permanent injunction restraining the defendants from selling or marking the goods by use of the trade mark containing 'Nambisan's' or 'Nambeesan' or containing trade mark similar to the mark of the plaintiffs. 8. In the appeal, it was contended that the word 'Nambisan' is the name of the community and there cannot be a registration granted to the plaintiffs in the name of community as the same is impermissible in law and the learned District Court acted contrary to law. Initials are so vastly different, the colour pattern was totally distinct and separate and the dissimilarity is far in excess of the similarities and their goods are not deceptively similar. There is absolutely no reason to pass off his goods as that of the plaintiffs. Initials are different and nobody can prevent him from using his community name. It was also argued that the suit itself ought to have been found not maintainable as the same is based on an alleged registered trade mark which was found to be non-existent because of non renewal. None of the conditions for establishment of passing off, namely, similarity in getup and size in design and colour etc. are present. On the basis of the evidence presented the learned District Judge ought to have found that the plaintiffs are not entitled to a decree. 9. The first contention pressed before us is the maintainability of the suit. It is stated by the learned District Judge that the case regarding maintainability of the suit was not argued before him. Therefore, that cannot be argued again. If the statement mentioned by the learned District Judge is wrong, it is for the plaintiff to take up the matter in review. The statement as recorded by the Courts are believed by the Appellate Court. There is no ground in the appeal memorandum alleging that the above statement in the District Court judgment is wrong. In any event, on the facts of the case also, we are of the opinion that the suit is maintainable. According to the appellant, even though the plaintiffs have registered their trade mark under the Act, it was not renewed. There is no ground in the appeal memorandum alleging that the above statement in the District Court judgment is wrong. In any event, on the facts of the case also, we are of the opinion that the suit is maintainable. According to the appellant, even though the plaintiffs have registered their trade mark under the Act, it was not renewed. It was contended that the suit is really for action against alleged infringement of trade mark and the suit itself is not maintainable. On going through the averments of the plaint, it can be clearly seen that the suit is filed not for violation or infringement of a registered trade mark but was a suit filed for injunction restraining the defendants from using effectively that trade mark or name. In other words, it is an action against passing off. The prayer portion of the plaint is as follows : "(a) Restraining the defendants, their agents, dealers, employees, stockists, distributors, sellers and persons directly or indirectly associated and/or connected with the defendants by a perpetual injunction from selling and/or marketing their goods by use of any trade mark containing 'Nambisam's/Nambeesan' and/or containing trade mark similar or identical to and/or deceptively similar to that of the plaintiffs trade mark and exhibited as document Nos. 1 to 3 hereunder in the list of documents and also from using the name board with the inscriptions and writings Nambeesan Dairy or Nambisan's Dairy; (b) Directing the defendants to pay the plaintiffs the costs of the suit; and (c) Granting such other further reliefs for which the plaintiffs may pray and this Hon'ble Court deems it fit to grant." A reading of the above reliefs would show that plaint claim is not for infringement of a trade mark. It is essentially an injunction against passing off. 10. Section 27 of the Act provides that no person shall be entitled to institute any proceeding to prevent or to recover damages for infringement of an unregistered trade mark. Here, no suit is filed to prevent or recover damages for infringement of an unregistered trade mark. It is true that as on the date of filing of the suit, there is no registration for the plaintiffs' trade mark. Here, no suit is filed to prevent or recover damages for infringement of an unregistered trade mark. It is true that as on the date of filing of the suit, there is no registration for the plaintiffs' trade mark. Sub-section (2) of Section 27 of the Act provides as follows : "Nothing in this Act shall be deemed to affect right of action against any person for passing off the goods as the goods of another person or the remedies in respect thereof." Therefore, the plaintiff's right for taking action against a person for passing off and such remedies are not affected by the provisions of the Act. Action for infringement is a statutory remedy of registered proprietor of his trade mark. Action for passing off is an action for deceit for colourable imitation of plaintiff's mark in relation to his goods which have acquired distinctive reputation in market. The concept of passing off is a form of tort. In view of Section 27(2), the provisions of the Act will not affect the right of action of any person against another for passing off his goods as the goods of that person or the remedies in respect thereof. Therefore, appellant's contention that since the plaintiffs' trade mark or trade name was not a registered one at the time of filing the suit, no action will lie and the suit is not maintainable in view of Section 27(1) cannot be accepted as the case is not for injunction against infringement of trade mark but for an injunction against passing off. 11. At the time of hearing the appeal, the petition was filed (CMP No. 3381/96) questioning the maintainability of the suit. The objection is that tortious claim of passing off exempted under Section 27(2) is not a statutory remedy under the Act, the suit ought to have been filed in the Sub-Court and not before the District Court. We are of the opinion that the above contention is also untenable in view of Section 105 of the Act which is as follows : "105. Suit for infringement, etc. We are of the opinion that the above contention is also untenable in view of Section 105 of the Act which is as follows : "105. Suit for infringement, etc. to be instituted before District Court : No suit - (a) for the infringement of a registered trade mark; or (b) relating to any right in a registered trade mark; or (c) for passing off arising out of the use by the defendant of any trade mark which is identical with or deceptively similar to the plaintiff's trade mark, whether registered or unregistered; shall be instituted in any court inferior to a District Court having jurisdiction to try the suit." Section 105(c) provides that passing off arising out of the use of the defendant of any trade mark which is identical with or deceptively similar to the plaintiff's trade mark whether registered or unregistered can be filed only in District Court. Therefore, the suit filed in the District Court is perfectly maintainable. Apart from the above legal position, we also note that no such jurisdictional question was raised before the Trial Court nor in the appeal memorandum. The defendant has submitted to the jurisdiction. We are of the opinion that in view of Section 105(c) of the Act, the suit was correctly instituted in the District Court. 12. The next question raised by the petitioner in CMP No. 3381 of 1996 during the hearing of the appeal is that proper court fee was not paid. According to the appellants, no court fee was paid under Section 25 or 27 of the Kerala Court Fees Act. Section 25 concerns with declaratory suit which has no application to the present case which is only an injunction suit. The relevant provision is contained in Section 27(c) of the Court-Fees Act and Court Fee was paid accordingly. In any event, the defendant's/appellant's objection cannot be entertained in view of Section 12(2) of the court fees Act. Defendants can make objection to the valuation of the suit only at the time when he files written statement. In the written statement, no such objection was filed. In the appeal memorandum also, no objection regarding court fee was raised. Therefore, the objection regarding payment of Court fees at the belated stage cannot be raised by the defendants and, in any event, we are of the opinion that correct Court fee was paid. In the written statement, no such objection was filed. In the appeal memorandum also, no objection regarding court fee was raised. Therefore, the objection regarding payment of Court fees at the belated stage cannot be raised by the defendants and, in any event, we are of the opinion that correct Court fee was paid. Since we are overruling the preliminary objections regarding the maintainability of the suit etc. we may now deal with essentials of an action for 'passing off'. 13. Salmond, in his Law of Torts (17th Edition at page 401), had laid down the gist of the conception of passing off as hereunder : "The gist of the conception of passing off is that the goods are in effect telling a falsehood about themselves, are saying something about themselves which is calculated to mislead. The law on this matter is designated to protect traders against that form of unfair competition which consists in acquiring for oneself, by means of false or misleading devices, the benefit of the reputation already achieved by rival traders." Passing off is defined in Kerly's Law of Trade Marks and Trade Names' (12th Edn. p. 344) "as an actionable wrong for the defendant to represent, for trading purposes, that his goods are those or that his business is that of the plaintiff, and it makes no difference whether the representation is effected by direct statements, or by using some of the badges by which the goods of the plaintiff are known to be his, or any badges colourably resembling these, in connection with goods of the same kind, not being the goods of the plaint, in such a manner as to be calculated to cause the goods to be taken by ordinary purchasers for the goods of the plaintiff. In 'Winfield and Jolowicz on Tort' (12th Edition by W. V. H. Rogers) it is stated that for action for passing off, the representation must be such as to cause confusion in the public mind between plaintiff's goods or business and the defendant's goods or business. Halsbury's Law of England, 4th Edition, Vol. 48, states that : "........ action for passing off at common law originally grew out of the action for deceit, and, like the action for deceit, required a false representation made fraudulently, but differed from it in that the persons deceived were the plaintiff's customers rather than the plaintiff himself. Halsbury's Law of England, 4th Edition, Vol. 48, states that : "........ action for passing off at common law originally grew out of the action for deceit, and, like the action for deceit, required a false representation made fraudulently, but differed from it in that the persons deceived were the plaintiff's customers rather than the plaintiff himself. The Action at common law was extended to cases where the defendant's customers were not themselves deceived but the defendant sold fraudulently marked goods to retail dealers with the express purpose of the goods being resold to ultimate purchasers as the plaintiff's goods. Although at first equity followed the common law in requiring fraudulent intent on the part of the defendant, it was later accepted that an injunction could be granted in equity in the absence of intention to deceive if the defendant's actions would in fact result in deception. It was soon accepted, both at law and in equity, that it was unnecessary that the goods passed off had to be inferior to the plaintiff's." In Erven Warnink B.V. v. J. Townend & Sons (Hull) Ltd. ((1979) 2 All ER 927), it was held by the House of Lords that in an action for passing off, there should be : "........ a misrepresentation made by a trader in the course of trade to prospective customers of his or ultimate consumers of goods or services supplied by him which is calculated to injure the business or goodwill of another trader, in the sense that this is a reasonably foreseeable consequence, and which causes actual damage to a business or goodwill of the trader by whom the action is brought or, in a quita timet action, will probably do so." In W. R. Cornish's 'Intellectual Property' (2nd Edition page 28), it is stated that action for passing off and injurious falsehood can be grouped together as economic tort. Their general characteristics are that the defendant must be acting intentionally or recklessly, that the plaintiff must suffer (or be about to suffer) damages and that they will not apply if some ground of justification is open to the defendant. Their general characteristics are that the defendant must be acting intentionally or recklessly, that the plaintiff must suffer (or be about to suffer) damages and that they will not apply if some ground of justification is open to the defendant. "Commercial Exploitation of Intellectual Property" by Hilary Pearson & Clifford Miller deals with law regarding passing off as follows : "The law of passing off applies whenever there is the prospect of confusion between marks get-up or where there is the prospect of confusion of identity through the unauthorised use of similar marks or get-up. As a consequence of this, the extent of protection available under the law of passing off is much broader than under the law of registered marks. Because the main consideration in passing off is whether deception or confusion is likely to arise, passing off can be used to protect pretty much any kind of distinctive name, mark, logo or get-up used to identify a company or business as such as well as products and services. Sometimes the identity of a product can become so uniquely associated with its appearance that it comes to be identified by and distinguished from all other products by that appearance. Thus, anyone else who adopts an appearance for his product which could confuse the public about its identity could be committing passing off." (Page 182) 14. In Corn Products Refining Co. v. Shangrila Food Products Ltd. (AIR 1960 SC 142.), the Supreme Court has laid down the test of comparing two competing marks. The question whether they are so similar as to be likely to deceive or cause confusion is one of first impression and for the court to decide. The question has to be approached from the point of view of a man of average intelligence and imperfect recollection and the question to be decided is whether the overall structural and phonetic similarity of the two marks is likely to deceive such a man or cause confusion in him as to make him mistake the goods of the defendant for those of the plaintiff. Here, the question is whether the word "Nambisan's" of the plaintiffs is phonetically similar to the word "Nambeesan" used by the appellants. In Kaviraj Pandit Durga Dutta Sharma v. Navratna Pharmaceutical Laboratories (AIR 1965 SC 980), the Supreme Court has considered the difference between action for passing off and infringement of trade mark right. Here, the question is whether the word "Nambisan's" of the plaintiffs is phonetically similar to the word "Nambeesan" used by the appellants. In Kaviraj Pandit Durga Dutta Sharma v. Navratna Pharmaceutical Laboratories (AIR 1965 SC 980), the Supreme Court has considered the difference between action for passing off and infringement of trade mark right. An action for passing off is a common law remedy being in substance an action for deceit, a passing off by a person of his goods as those of another. The gist of an action for infringement is different. The action for infringement is statutory remedy conferred on the registered proprietor of a registered trade mark for the indication of this exclusive right to the use of the trade mark in relation to his goods. The use by the defendant of the trade mark of the plaintiff is not essential in an action for passing off, but is the sin qua non in an action for infringement. Where the evidence in respect of passing off consists merely of the colourable use of a registered trade mark, the essential feature of both the actions may coincide in the sense that what would be a colourable imitation of a trade mark in passing off action would also be such in an action for infringement of the same trade mark. But the correspondence between the two ceases there. And in an action for infringement, the plaintiff must not only make out that the use of the defendant's mark is likely to deceive, but where the similarity between the plaintiff's and the defendant's mark is so close either visually, phonetically or otherwise and the Court reaches the conclusion that there is imitation, of further evidence is required to establish that the plaintiff's rights are violated. The length of user of a mark will also be material factor for the mark to become distinctive and exclusively associated with the goods of the plaintiffs. 15. In Ruston and Harnby Ltd. v. Zamindara Engineering Co. (AIR 1970 SC 1649), again, the Supreme Court pointed out the distinction between infringement action and passing off action. The former is a statutory right, and if the trade mark of the defendant is identical with the plaintiff's mark the Court will not enquire whether the infringement is such as is likely to deceive or cause confusion. (AIR 1970 SC 1649), again, the Supreme Court pointed out the distinction between infringement action and passing off action. The former is a statutory right, and if the trade mark of the defendant is identical with the plaintiff's mark the Court will not enquire whether the infringement is such as is likely to deceive or cause confusion. But, if the alleged infringement is not in using the exact mark, but something similar, then the test of infringement is the same as in an action for passing off. And the gist of the later is that the defendant is not entitled to represent his goods as the goods of the plaintiff. But, it is not necessary for the plaintiff to prove that the defendant did this knowingly or with any intent to deceive. It is enough in a passing off action that the get-up of the plaintiff's goods has become distinctive and that there is a possibility of confusion between them and the goods of the defendant. No case of actual deception need be proved. After having examined the general principles, we may now deal with the contentions of the petitioner in the appeal. 16. "Trade mark" is defined under Section 2(v) of the Act as under : "2(v) "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 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." "Mark" is defined in Section 2(j) as follows : "mark" includes a device, brand, heading, label, ticket, name, signature, word, letter or numberal or any combination thereof." 17. Accordingly to the plaintiffs their trade mark 'Nambisan's' used by the plaintiffs has acquired distinctiveness by long use since 1932. Accordingly to the plaintiffs their trade mark 'Nambisan's' used by the plaintiffs has acquired distinctiveness by long use since 1932. It was contended that the appellants use the word 'Nambeesan' only to deceive the unwary consuming public. The difference between the two marks are only nominal and the marks are deceptively similar. The trade mark or the trade name 'Nambisan's' used by the plaintiffs and the word 'Nambeesan' used by the defendants are phonetically similar. When the word 'Nambeesan' is written in Malayalam, visually also, it is the same. This was intended only to deceive the public. The word 'deceptively similar' is defined in Section 2(d) of the Act as follows : "A mark shall be deemed to be deceptively similar to another mark if it so nearly resembles that other marks as to be likely to deceive or cause confusion." Therefore, the plaintiffs contended that the word used by the defendants is deceptive similar. They are using the name 'Nambisan's' as they are all along selling their milk products as Nambisan's butter, Nambisan's Ghee, Nambisan's butter milk etc. The use of the mark 'G. K. Nambeesan' by the defendants is only intended to deceive the public who are purchasing the products. 18. It is contended that the defendants/appellants that the 2nd defendant who is the wife of the 1st defendant is from Nambisan community and Nambisan is only a community name. It is further pointed out that 1st defendant's father-in-law (2nd defendant's father) was Narayanan Nambisan and the word 'Nambisan' is used only for perpetuating his memory and being a community name, it can be used by anybody. It is pointed out by the defendants that an application for registration cannot be granted if the registration is in respect of a caste, name and community name and Nambisan is only a caste name (See Section 9(1)(d) of the Act). Section 9(2) makes it clear that if there is evidence of distinctiveness, such names can be used. Any way, we are not dealing with registration of a trade mark, or considering the case whether registration of trade mark granted is correct or not ? Section 9(2) makes it clear that if there is evidence of distinctiveness, such names can be used. Any way, we are not dealing with registration of a trade mark, or considering the case whether registration of trade mark granted is correct or not ? We are in a passing off case where questions to be considered are : (1) Whether the goods of the plaintiffs have acquired distinctiveness with any name of mark and are associated in the minds of a general public dealing in the goods; (2) Whether the nature of activity of the plaintiffs and that of the defendants are the same or similar; (3) Whether using of the same trade mark or trade name by the defendant is likely to deceive and cause confusion in the unwary consumers' mind and injury to the business reputation of the plaintiff especially when the sphere of activities and the market of consumption of goods of the parties are the same. Whether the plaintiffs trade mark or name is the name of plaintiffs community or not is immaterial in a claim of passing off. 19. One important contention raised by the appellants is that by using the word 'Nambeesan' they are only using their name. Hence, action for passing off will not lie. It also pointed out that Section 34 of the Act provides that nothing in this Act shall entitle the proprietor or a registered user of a registered trade mark to interfere with any bona fide use by a person of his own name or that of his place of business, or of the name, or of the name of the place of business, of any of his predecessors in business. It is the contention that they have named their dairy as G. K. Nambeesan and 'G' stands for the first syllable of his wife's name (2nd defendant) and 'K' is the first syllable of his name and Nambeesan is the father-in-law's name and it was also contended that 2nd defendant belongs to Nambisan community and, therefore, the name 'Nambeesan' was taken. The exact name of the defendants are not Nambisans. The 1st defendant belongs to Warrier community and not Nambisan community. It is also in evidence that ladies in the Nambisan community never use the word 'Nambisan' with their name. In any event, 2nd defendant's name did not contain the word or suffix 'Nambeesan'. The exact name of the defendants are not Nambisans. The 1st defendant belongs to Warrier community and not Nambisan community. It is also in evidence that ladies in the Nambisan community never use the word 'Nambisan' with their name. In any event, 2nd defendant's name did not contain the word or suffix 'Nambeesan'. The father-in-law of the 1st defendant on whose name 'Nambeesan' is used is not the predecessor-in-business. He was a former employee of plaintiffs' firm. Therefore, it cannot be contended by the defendant that they are only using their name and there is no passing off. The question is whether the name used by the defendants is calculated to deceive the public that his business is that of the plaintiffs. It is settled law that the right to trade is one's own name does not entitle a man to use his name in connection with goods or business if the result will be to deceive the public into believing that they are the goods or the business of another. Wright Layman and Umney Ltd. v. Wright ((1949) 66 RPC 149), and Marengo v. Daily Sketch and Sunday Graphic Ltd. ((1949) 65 RPC 242). 20. In the decision reported in East and Hosiery Mills Pvt. Ltd. v. Agarwal Textile Mills (AIR 1971 Calcutta 3), the Calcutta High Court considered the resemblance in respect of the getup of the two marks phonetically 'Moti' and 'Sacha Moti'. It was found by the Court that 'Sacha Moti' was used by the defendants to imitate the name 'Moti' of the plaintiffs. There is phonetically similarity between the words. The explanation that the name 'Moti' has been taken from Moti Ram Gupta, father of one of the partners of the defendant firm was to accepted by the Calcutta High Court in the above case. Therefore, even though the defendant used his father's name, it was held that the defendant's use of the name and mark was likely to deceive or cause confusion or injury to the goodwill of the plaintiffs business. The Bombay High Court in the decision reported in Bajaj Electrical Ltd. v. Metals and Allied Products (AIR 1988 Bombay 167), held that when family name of the defendant is identical to trade name of the plaintiff, can it be used ? Plaintiff-company incorporated under the Companies Act was in the business of electrical accessories etc. from 1938. The Bombay High Court in the decision reported in Bajaj Electrical Ltd. v. Metals and Allied Products (AIR 1988 Bombay 167), held that when family name of the defendant is identical to trade name of the plaintiff, can it be used ? Plaintiff-company incorporated under the Companies Act was in the business of electrical accessories etc. from 1938. They change their name to Bajaj Electricals Ltd. in 1960 and they were selling the goods and the company was known as 'Bajaj' Group'. The defendant also used the mark 'Bajaj' when they started sales of steel utensils. It is the contention of the defendant that they are entitled to use their own name as the surname of the partners of defendant No. 1 being 'Bajaj'. Even the goods that were sold by the company were different, court allow the injunction against the defendants. 21. In Parker v. Parker (1965 RPC 323), the Court considered a similar question. There, one Johan Thomas Parker formerly connected with a company carrying on business as estate agents under the name 'Parkers' set up in business on his own in the same are also as 'Parkers' an interlocutory injunction was granted to restrain him from doing so, the Judge remarking : "The question is not simply whether the defendant can be prevented from using his own name but whether the defendant can be prevented from garnishing that name .... in such a way that it looks as if the name were being used not by him by the plaintiffs." In Baume & Co. Ltd. v. A. H. More Ltd. (1958 (2) All ER 113), the defendant contended that he is only using his own name bona fide. Plaintiffs, Baume & Co Ltd., and their predecessors had traded in England as distributors and sellers of watches. The word 'Baume' had been the registered trade mark for the watches. The defendants A. H. More Ltd. began to import and sell watches made by a Swiss Company known as Baume & Mercier, S.A. The watches and the boxes containing them bore the mark 'Brume & Mercier, Geneva'. The plaintiffs claimed that this use of the word 'Baume' constituted an infringement of their trade mark and was calculated to pass off the goods sold by the defendants as the plaintiffs goods. The plaintiffs claimed that this use of the word 'Baume' constituted an infringement of their trade mark and was calculated to pass off the goods sold by the defendants as the plaintiffs goods. The defendants established that use of the name 'Baume' was an honest use by them of the maker's own name. After considering the evidence, it was held that even though no action can be laid for infringement of the plaintiffs' registered trade mark, the use constituted a passing off which should be restrained by injunction because there was real probability that the watches marked 'Baume & Mercier, Geneva' goods be regarded the said or in some way associated with the plaintiff's goods and no man is entitled even by the honest use of his own name so to describe or mark his goods as in fact to represent that they were the goods of another person. In John Brinsmead & Sons Ltd. v. Brinsmead & Waddington & Sons Ltd. (1913, 30 RPC 493), Buckley Lord Justice held as follows : "If a trader takes a name which is not his own name, but is that of a rival trader, and uses it in his trade, no doubt that is every strong evidence that he intends to deceive, and the court will fasten upon that in any case in which it occurs, but if that is not so, if he is simply using his own name and it is proved that its use results in deception, he will be restrained even from using his own name, without taking such steps as will preclude the deception which by hypothesis, is engendered by his using his own name. There are many authorities for this proposition." Therefore, the crucial question to be considered in this case is whether the use of the name 'Nambeesan' by the defendants is deceptively similar to 'Nambisan's', the plaintiffs' trade mark and whether unwary purchasers will be mislead by the defendants selling in a name similar to 'Nambisan's'. 22. As a general rule, a person can freely use his own name, or one which he has acquired by reputation, although the use of it inflicts damage on someone else who has the same name. This is, however, qualified to some extent by the law of passing off. 22. As a general rule, a person can freely use his own name, or one which he has acquired by reputation, although the use of it inflicts damage on someone else who has the same name. This is, however, qualified to some extent by the law of passing off. The Parker Knoll Ltd. v. Knoll International Ltd. (1962 RPC 243), both parties were manufacturers of furniture, the plaintiff being a company well known in the United Kingdom and the defendant an American company which had only recently begun to trade in England. Notwithstanding that the defendant-company did not more than use its own name on its furniture, the House of Lords, by a majority, granted an injunction to restrain it from continuing to do so without distinguishing its goods from those of the plaintiff. The plaintiff had established that its name had come to denote goods made by it alone and not goods made by anyone else possessing or adopting that name, and the use by the defendant of a similar name did, in the opinion of the majority, amount to the false representation that its goods were the plaintiff's goods. the central question in each case is, therefore, whether the name or description given by the defendant to his goods is such as to create a likelihood that a substantial section of the purchasing public will be misled into believing that his goods are the goods of the plaintiff. That the defendant used his own name with no intention to deceive anybody does not mean that such a likelihood has not been ruled out, but proof that the defendant did intend to deceive, where it can be made, will materially assist the plaintiff's case. In this case, we have already found that the word 'Nambeesan' is not the defendants name. Therefore, such a defence cannot be taken by the defendants/appellants. Further, even if it is the community's name or second defendant's father's name, it cannot be used by the defendants as the plaintiff has already acquired a reputation and distinctiveness in the market with regard to the sale of milk products by the name 'Nambisan's. From the evidence, it is clear that the plaintiff was using the word 'Nambisan's for selling their milk products for more than half a century and they have got a reputation in the market. The word 'Nambisan's' had attained a distinctiveness in the milk products market. The name 'Nambeesan' induces customers to buy the goods believing that they are manufactured by the plaintiff. Plaintiff had acquired sufficient reputation in the market in selling goods in the name 'Nambisan's butter', 'Nambisan Ghee', 'Nambisan's butter milk etc. Now, the question to be considered is whether the defendants' use of the word 'Nambeesan' as 'Nambeesan' Dairy' in the wrappers, labels etc. made use by them is deceptively similar to that of the plaintiffs usage 'Nambisan's. The word 'Nambisan' in the trade mark of the plaintiff's 'Nambisan's and the word 'Nambeesan' in the 'G. K. Nambeesan Dairy' are phonetically similar. In both the goods, the word 'Nambisan' is written similarly in Malayalam. It is pronounced similarly in English. Therefore, from the evidence available, it is clear that the purchaser who does not know that there is another firm called 'Nambeesan's Dairy' is likely to be decided by the defendant's using the same name 'Nambeesan'. 23. As decided by the Supreme Court in the decision reported in Parle Products (P.) Ltd. v. J.P. & Co. Mysore (AIR 1972 SC 1359), 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 etc. It would be enough if the impugned mark bears such an overall similarity to the registered mark as would be like to mislead a person usually dealing with one to accept the other if offered to him. There, the Court was considering the difference between Parle's Gluco Biscuits manufactured by the plaintiffs and Glucose biscuits manufacture by the defendant. It was held that an ordinary purchaser is not gifted with the powers of observation of a Sherlock Holmes and the use of the mark are deceptively similar. Now, we may examine to find out whether the defendants' use of the word 'Nambeesan' in their product is deceptively similar. In K. R. Chinna Krishna Chettiar v. Sri Ambal & Co. It was held that an ordinary purchaser is not gifted with the powers of observation of a Sherlock Holmes and the use of the mark are deceptively similar. Now, we may examine to find out whether the defendants' use of the word 'Nambeesan' in their product is deceptively similar. In K. R. Chinna Krishna Chettiar v. Sri Ambal & Co. and another (AIR 1970 SC 146), the Supreme Court held that the plaintiff's word 'Ambal' is distinctive and essential feature of that trade mark and that word fixes itself in the recollection of an average buyer with imperfect recollections the snuff belonging to the plaintiff. Therefore, the word 'Andal' used by the defendant is deceptively similar. It was held that even if there is no visual resemblance between the two marks that does not matter when there is a close affinity of sound between the words which are distinctive features of the two marks. The contention of the defendant that the word 'Ambal' and 'Andal' have distinctive meaning was also not accepted by the Supreme Court. It was held that phonetical resemblance lead to confusion when it is likely that majority of the customers are not capable of understanding the fine distinction between the meaning of the two words. According to us, the word 'Nambisan' used by the plaintiffs and 'Nambeesan' used by the defendants had striking phonetic resemblance. 24. While considering the word 'Lakshmandhara' and 'Amritdhara' in Amritdhara Pharmacy v. Satya Deo Gupta (AIR 1963 SC 449), it was held that overall similarity between the two names was likely to deceive or cause confusion. It was held by the Supreme Court as follows : As we said in Corn Products Refining Co. v. Shangrila Food Products Ltd., (supra) the question has to be approached from the point of view of a man of average intelligence and imperfect recollection. To such a man the overall structural and phonetic similarity of the two names 'Amritdhara' and 'Lakshmandhara' is, in our opinion, likely to deceive or cause confusion. We must consider the overall similarity of the two composite words 'Amritdhara' and 'Lakshmandhara'. We do not think that the learned Judge of the High Court were right in saying that no Indian would mistake one for the other. We must consider the overall similarity of the two composite words 'Amritdhara' and 'Lakshmandhara'. We do not think that the learned Judge of the High Court were right in saying that no Indian would mistake one for the other. An unwary purchaser of average intelligence and imperfect recollection would not, as the High Court supposed, split the name into its component parts and consider the etymological meaning thereof or ever consider the meaning of the composite words as 'current of nectar' or 'current of Lakshman'. He would go more by the overall structural and phonetic similarity and the nature of the medicine he has previously purchased, or has been told about, or about which has otherwise learnt and which he wants to purchase. Where the trade relates to goods largely sold to illiterate or badly educated persons, it is not answer to say that a person educated in the Hindi language would go by the etymological or ideological meaning and see the difference between 'current of nectar' and 'current of Lakshman'. 'Current of Lakshman' in a literal sense has no meaning to give it meaning one must further make the inference that the 'current or stream' is as pure and strong as Lakshman of the Ramayana. An ordinary Indian villager or town man will perhaps know Lakshman, the story of the Ramayana being familiar to him; but, we doubt if he would etymologise to the extent of seeing the so-called ideological difference between 'Amritdhara' and 'Lakshmandhara'. He would go more by the similarity of the two names in the context of the widely known medicinal preparation which he wants for his ailments." 25. In Weber-Stephen Products Co. v. Alrite Engineering (Pvt.) Ltd. and others (1992 RPC 549), the Supreme Court of South Africa was considering action for passing off. There, the contention that the plaintiff's 'kettle type' barbecue grill solely to its shape and external configuration the plaintiff's products acquired distinctiveness in the market and reputation. The Court held that shape and configuration of products although pertaining to necessary parts of product, capricious in sense that product would operate as efficiently and could be manufactured as economically with different arrangement or shape of its parts. Therefore, since the plaintiff has acquired reputation by the size that the defendant should be injuncted to use 'kettle type' barbecue grill and defendant can manufacture barbecue grill in any other size. Therefore, since the plaintiff has acquired reputation by the size that the defendant should be injuncted to use 'kettle type' barbecue grill and defendant can manufacture barbecue grill in any other size. The House of Lords in Reckitt & Colman Products Ltd. v. Boarden Inc. and others (1990 RPC 341), has considered a case where the plaintiff was selling lemon juice since 1956 in plastic squeeze container which in size, shape and colour resembled a lemon. The word 'Jif' was embossed on the side of the container. The defendant started selling lemon juice under the mark 'Realemon'. But, used similar plastic bottles. It was held, after considering the evidence, that passing off had been established in both actions and that the purchasing public had come to associate the natural size lemon container with the plaintiff's lemon juice sold under their brand name Jif. The fact that instead of Jif, Realemon is used was not material as those purchasing plastic lemons in super markets did not read the labels but assumed that whatever they brought must be Jif lemon juice. Lord Oliver of Aylmerton, after considering the various case laws, summarised the decision for passing off as follows : "The law of passing off can be summarised in one short general proposition - no man may pass off his goods as those of another. More specifically, it may be expressed in terms of the elements which the plaintiff in such an action has to prove in order to succeed. These are three in number. First, he must establish a goodwill or reputation attached to the goods or services which he supplies in the mind of the purchasing public by association with the identifying 'get-up' (whether it consists simply of a brand name or a trade description, or the individual features of labelling or packaging) under which his particular goods or services are offered to the public such that the getup is recognised by the public as distinctive specifically of the plaintiff's goods or services. Secondly, he must demonstrate a misrepresentation by the defendant to the public (whether or not intentional) leading or likely to lead the public to believe that goods or services offered by him are the goods or services of the plaintiff. Secondly, he must demonstrate a misrepresentation by the defendant to the public (whether or not intentional) leading or likely to lead the public to believe that goods or services offered by him are the goods or services of the plaintiff. Whether the public is aware of the plaintiff's identity as the manufacturer or supplier of the goods or services is immaterial, as long as they are identified with a particular source which is in fact the plaintiff. For example, if the public is accustomed to rely upon a particular brand name in purchasing goods of a particular description, it matters not at all that there is little or no public awareness of the identity of the proprietor of the brand name. Thirdly, he must demonstrate that he suffers or, in a quita timet action that he is likely to suffer, damage by reasons of the erroneous belief engendered by the defendant's misrepresentation that the source of the defendant's goods or services is the same as the sources of those offered by the plaintiff. We are also of the opinion, that the word 'Nambisan's' has created a good reputation of the milk products in the mind of the purchasing public by association of its name and by the defendants' use of the same name, there is likelihood of deception." 26. In Law Society of England and Wales v. Griffiths and another (1995 RPC 16), plaintiff launched a scheme called Accident Line whereby members of the public could Telephone Number 0500 192939 for general advice in respect of accidents and personal injuries. The defendants obtained a telephone number 0800 192939 for their own accident advice service. The court did not accept the plea of the defendant that there is no dishonest intention and any real chance of confusion and they merely selected a telephone number which did not amount to misrepresentation. It was found that plaintiff had substantial reputation in the variety of activities and the defendant had selected the telephone number intending to divert the business from the plaintiff's scheme and therefore, an injunction can be granted as the telephone number is likely to deceive the public and plaintiff may suffer damages. It was found that plaintiff had substantial reputation in the variety of activities and the defendant had selected the telephone number intending to divert the business from the plaintiff's scheme and therefore, an injunction can be granted as the telephone number is likely to deceive the public and plaintiff may suffer damages. In British Diabetic Association v. Diabetic Society Ltd. and others (1995 (4) All Er 812), it was held that scope of passing off action was wide enough to include deception of the public by one fund raising charity in a way that tended to appropriate and so damages another fund raising charity's goodwill. In the decision reported in Hiralal Parbhudas v. Ganesh Trading Co. and another (AIR 1984 Bombay 218), it was held by the Bombay High Court that labels 'Hiralal Chhap Bidi' and 'Himatal Special Bidi'. have overall structural phonetic similarity and therefore, injunction was issued for passing off and further held that the marks must be compared as a whole, microscopic examination being impermissible. Here also, applying the test that marks must be looked at from the first impression of a person of average intelligence and imperfect recollection, the names are deceptively similar. 27. In Pidilite Industries Pvt. Ltd. v. Mittees Corporation and another (AIR 1989 Delhi 157), it was held that plaintiff was using the name 'Fevicol' for long time and the defendant started marketing its goods in the name 'Travicol' and the name 'Trevicol' is deceptively similar to the name 'Fevicol'. It was found in Accutron, T.M. (1966 RPC 152), that the name Accutron is similar to Accurist. It was held in Bular T.M. (1966 RPC 141), that the name Buler is likely to deceive for the word 'Bulova' for watches. In Hamsa v. Syed Agencies (1990 (1) KLT 785), it was held that the name Bismilla used for ball points pens, fountain pens and allied articles is deceptively similar to the articles of the plaintiff marketed in the trade name 'Bismi'. In National Garments v. National Apparels (1989 (1) KLT 855), the plaintiff was using the trade mark 'Tunoform'. The defendant after retirement from the plaintiff firm has started an identical business with a trade name 'Tunoform'. It was held that both are deceptively similar and, therefore, injunction was issued. In East End Hosiery Mills case mentioned earlier it was held that the word 'Sacha Moti' is similar to 'Hira Moti'. The defendant after retirement from the plaintiff firm has started an identical business with a trade name 'Tunoform'. It was held that both are deceptively similar and, therefore, injunction was issued. In East End Hosiery Mills case mentioned earlier it was held that the word 'Sacha Moti' is similar to 'Hira Moti'. In Corn Products Refining Company's case mentioned earlier, it was held that the word 'Gluvita' used with reference to biscuits and 'Glucovita' used with reference to Glucose are likely to cause confusion. In Bata India Ltd. v. Pyare Lal & Co. (AIR 1985 All 242), it was held that the defendant's use of the name 'Bata foam' was indicative of their intention as it is deceptively similar to 'Bata' and injunction was granted against the defendant. In Anglo-French Drug Co. (Eastern) Ltd. v. Belco Pharma (AIR 1984 P&H 430), it was held that Beplex and Belplex are phonetically and visually similar and the goods of the defendants are likely to be sold as the goods manufactured by the plaintiff. Therefore, injunction was granted restraining the defendant from using similar trade mark. 28. Other example where injunctions were granted for deceptive phonetic resemblance of name are : (1) Pine and Pine Tie for liquid soap (1933 (50) RPC 405); (2) Kleen up and Kleen off for gas cooker cleaner (1934 (51) RPC 129); (3) Erectico and Erector for toys (1935 (52) RPC 136); (4) Vaseline and vanildene for oil (Ana Laboratories Ltd.'s Application 1952 RPC 146); (5) Unimax and Univac for electrical goods (Unimax T.M. 1979 RPC 469); (6) Aquamatic and Watermatic for water pistols, Reynold's v. Laffeaty's (1958 RPC 387); (7) Runs and Sanrus, Ravenhead Brick v. Ruabon (1937 RPC 341); (8) Leibling and Rheinliebiling for Rhine Wines (Rheinliebling's case 1966 RPC 68); (9) Rose Carding and Rose Garden for cosmetics, Rose Cardian T.M. (1995 RPC 246); (10) Hy-line and Hi-bred for poultry, Pioneer Hi-Bred Corn. v. Hy-lie Chicks Pvt. Ltd. (1979 RPC 410); (11) Midland Counties Dairy Ltd. and Midland Dairies Ltd. for business in ice creams Midland Countries Dairy Ltd. v. Midland Diaries Ltd. (1948 RPC 429); (12) B. L. Phlogiston and Antiphlogistine for a medicial preparation, Bengal Immunity Co. Ltd. v. Denver Chemical Manufacturing Co. (AIR 1959 Cal. 636); (13) Formis and Charmis for Cosmetics Banwaridas Pugalia v. Colgate Palmolive (AIR 1979 Cal. Ltd. v. Denver Chemical Manufacturing Co. (AIR 1959 Cal. 636); (13) Formis and Charmis for Cosmetics Banwaridas Pugalia v. Colgate Palmolive (AIR 1979 Cal. 133); (14) Thangapavan and Thanga Baspem for chewing tobacco, Arumugam Pillia v. Syed Abbas (AIR 1964 Mad. 204); (15) BK and BK-21 for cycle bells B.K. Engineering Co., Delhi v. UBHI Enterprises (AIR 1985 Delhi 210); and (16) Virendra Dresses and Varindra Garments for clothes M/s. Virendra Dresses v. M/s. Varindera Garments (AIR 1982 Delhi 482). Considering the decided cases and evidence in this case including material objects produced and oral evidence, we are of the opinion that the trade mark 'Nambisan's' used by the plaintiffs and 'Nambeesan' used by the defendants are deceptively similar and public are likely to be deceived as phonetically the names are deceptively similar and it is likely that the plaintiff is to suffer damages. 29. The learned Advocate appearing for the appellants referred to the judgment of the Delhi High Court in Nestle's Products Ltd. and others v. M/s. Milkmade Corporation and another (AIR 1974 Delhi 40). In the above case, plaintiffs Nestle Products Ltd. had registered trade mark 'Milkmaid' and was marketing condensed milk which was acquired wide reputation in the market. Plaintiffs wanted to prevent the defendant Milkmade Corporation from using their trade mark. The Court did not accept the same. According to us, the above decision is not applicable to the facts of this case. In the above case, the defendant Milkmade Corporation was selling biscuits and toffees whereas the trade mark "Milkmade" was used by the plaintiffs in their product condensed milk. The court held that action for passing off will not lie as defendants dealt within biscuits and toffees which are not produced by the plaintiffs and the wrappers were printed with the word 'Milkmade Corporation' whereas the plaintiffs sold condensed milk in different types of tins and cans and common people will not be deceived. In the case under consideration by us, the products are similar, that is butter, ghee and other milk products and we have already held that the word 'Nambisan' used in both marks are deceptively similar. Therefore, the facts are not applicable to the case. 30. The next case cited by the appellants was the judgment of the Punjab and Haryana High Court in reported Brij Mohan Dutta v. M/s. Jallo Subsidiary Industries Co. (India) Ltd. (AIR 1990 P&H 229). Therefore, the facts are not applicable to the case. 30. The next case cited by the appellants was the judgment of the Punjab and Haryana High Court in reported Brij Mohan Dutta v. M/s. Jallo Subsidiary Industries Co. (India) Ltd. (AIR 1990 P&H 229). There the plaintiffs had registered trade mark 'Elephant'. The defendants had also registered trade mark 'Lion Elephant'. The court, after examining the products, held that the products were dissimilar and a reasonably prudent buyer is not likely to be misled. It was also held that the defendant is the registered proprietor of the trade mark 'Lion Elephant' and has exclusive right to the use of the trade mark in relation to the goods in respect of which the trade mark is registered and issuance of any interim injunction in favour of the plaintiff will amount to depriving the defendant from using the trade mark on his product which has validly been granted. Therefore, in the above case, the defendant was the owner of the registered trade mark whereas in the case under consideration, the defendant has no case that 'G. K. Nambeesan' is the registered trade mark of the defendants and they are dealing with different type of goods. Therefore, the above case is also not applicable to the facts of the case. Next decision cited by the appellants is the decision of the Calcutta High Court reported in S. M. Chopra & Sons v. Rajendra Prasa Srivastava (AIR 1988 Cal 326). There, the plaintiffs were manufacturing rice bullers and spare parts under trade mark 'Raja' for 20 years and they wanted to stop defendants from using 'Maharaja'. The court found that the mark of the defendant was not deceptively similar and said mark was simultaneously in use. The finding of the court was that the name Maharaja used by the defendants will not in any way affect the reputation of the plaintiffs and there is no likelihood of deception. The above decision was based on the facts of the case and this decision will not help the appellants as we have already found that the name 'Nambisan's', or 'Nambeesan' are deceptively similar. 31. The above decision was based on the facts of the case and this decision will not help the appellants as we have already found that the name 'Nambisan's', or 'Nambeesan' are deceptively similar. 31. Appellants also pointed out a decision of the Delhi High Court reported in M/s. Surya Agro Oils Ltd. v. M/s. Surya Coconut Oil Industries (AIR 1995 Delhi 72), wherein it was held that 'Sun' device used by the plaintiff in a half circle with lines and 'Sun' device used by the defendant which has flames around its circumference with eyes, nose and mouth are not deceptively similar. In that case, the court held that 'Surya' is a Hindi name of Sun and mark Sun as the centre of the solar system has existed for long time for defendant so as 'Surya' for plaintiff. Therefore, the court was not inclined to grant any injunction with respect to the word 'Surya'. The Court also found that the defendants had already registration certificate and the trade marks are entirely different and half sun of Surya Agro Oils Ltd. cannot be confused by any reasonable person as that of the mark of Surya Coconut Oil industries. This decision is, therefore, based on the facts of the case. Therefore, it can be seen that the decision in Surya Agro's case is not helpful to the appellants as it was based on the facts of that case. At this juncture, we may refer to another decision of the Delhi High Court reported in M/s. Surya Roshni Ltd. v. Electronic Sound Components Co. (AIR 1995 Delhi 92 = 53 DLT 489). Plaintiff-company therein was manufacturing and selling fluorescent tubes, lamps, bulbs, chokes and fittings etc. with the registered trade mark 'Surya'. Defendants adopted using trade mark 'Bhaskar' with the device of sun in respect of their electronic products of same nature. It was held by the court that the trade mark adopted by the defendants is deceptively similar to the trade mark used by the plaintiffs-company and the defendant was restrained from manufacturing, selling, offering for sale or otherwise dealing and passing off their products. 32. It was contended by the defendant that several others are also using the word 'Nambisan' and, therefore, plaintiffs' mark has lost its distinctiveness. 32. It was contended by the defendant that several others are also using the word 'Nambisan' and, therefore, plaintiffs' mark has lost its distinctiveness. Evidence to the effect that some others are using the very same name 'Nambisan's' for Dairy product as well as some other products were also adduced by the defendants. He also cited a Single Bench decision of the Madras High Court in R. S. K. V. Raghavan v. G. L. Gopal & Co. and others (AIR 1981 Madras 262). There, it was held that 'Thennamarakkudi Oil' is geographical name and used by other manufacturers of similar medicinal oil and, therefore, use of Thennamarakkudi having become publici juris, nobody could claim exclusive right. Similarly, it was contended that the word 'Nambisan' is the community name and many people are using the same and it has lost distinctiveness. Considering the evidence in this case, we are of the opinion that the word 'Nambisan's' was used by the plaintiffs for more than half a century. 1st defendant as well as his father-in-law was earlier employed therein. We have already held that it has got distinctiveness for the milk products. Unlike the case considered by the Madras High Court, the word 'Nambisan's' did not represent the geographical name. Finding in the above decision was that Thennamarakkudi has not achieved distinctive character with respect to its medicinal preparation as several others were using and was so common in the market. Therefore, we are of the view that the above case cannot be compared with the trade mark of the plaintiff 'Nambisan's. In this case, it was not proved by the defendant that the plaintiff has abandoned his mark or its mark 'Nambisan's' has become so common in the market that it lost its distinctiveness. It was held by the Supreme Court in National Bell Co. and Gupta Industrial Corporation v. Metal Goods Mfg. Co. (P.) Ltd. (AIR 1971 SC 898), that the mere fact that the trade mark was used by some other persons in the business and that in the absence of proof that such use was substantial, will not affect the plaintiffs' right. The evidence adduced by the witnesses shows that the word 'Nambisan's' has distinguished the goods of milk products of the plaintiffs-company. In significant use of that name by one or two local parties in the area will not affect the plaintiffs' right. The evidence adduced by the witnesses shows that the word 'Nambisan's' has distinguished the goods of milk products of the plaintiffs-company. In significant use of that name by one or two local parties in the area will not affect the plaintiffs' right. It was held by the Supreme Court in the National Bell Co.'s case that mere neglect to proceed against all such parties does not necessarily constitute abandonment. 33. Where neglect to challenge is alleged, the character and extent of the trade of the infringers and their position have to be considered and the defendant should prove that by use by many people, the plaintiff has lost its distinctiveness. In this case, it is not proved that the plaintiff lost its reputation or distinctive use of the mark. In the Andhra Perfumery Works v. Karupakula Suryanarayaniah and others (AIR 1969 Madras 126), it was contended that the word 'Ganesh' is the name of the God Ganesh and many people are using the name Ganesh, a Deity respected by all Hindus and the word Ganesh is used by many people and, therefore, trade mark cannot be given for Durbar Bathies. It was held by the Madras High Court that the fact that it was used by some others would not amount to abandonment as it will not be possible to destroy the distinctiveness earlier achieved by the plaintiffs. Mere misuse for a short period by one or two people will not destroy distinctiveness and mark will not become publici juris. It is contended by the defendants that the plaintiffs originally started Nambisan's D.V. Dairy whereas defendants name is G. K. Nambeesan's Dairy. The plaintiff's trade mark is 'Nambisan's'. The question is whether the word 'Nambeesan' used by the defendant and 'Nambisan's Dairy' is deceptively similar. It was also held by the Supreme Court in P. Hoffimannla Roche & Co. Ltd. v. Geoffrey Manners & Co. Pvt. Ltd. (AIR 1970 SC 2062), that the marks must be compared as a whole. It is not right to take a portion of the word and say that because that portion of the word differs from the corresponding portion of the word, there is no sufficient similarity to cause confusion. The true test is whether the totality of the mark is such that it is likely to cause deception or confusion or mistake in the minds of persons accustomed to the plaintiff's name. The true test is whether the totality of the mark is such that it is likely to cause deception or confusion or mistake in the minds of persons accustomed to the plaintiff's name. There, it was held by the Supreme Court that the word 'Protovit' and 'Droporvit' are not deceptively similar. According to us, the word 'Nambeesan' used by the defendants is deceptively similar to the plaintiffs' mark 'Nambisan's' when it is taken as a whole and it is likely to cause deception and confusion in the minds of usual customers. 34. Next contention of the appellant is that actual deception is not proved and the appellant used bone fide the name. 'Nambeesan' because of the name of the father-in-law of the 1st defendant. We are of the opinion that this is also cannot be accepted The 1st appellant (first defendant) was working as a Manager of one of the branches of the plaintiffs' firm. The second defendant's father was a dismissed employee of the plaintiff. They were aware of the use of the plaintiff's trade mark 'Nambisan's'. An ordinary man may not be aware of the use of the word 'Nambeesan's' by another and it will produce such confusion in the minds of the probable customers or purchasers of other persons with whom the plaintiffs has business relations as would be likely to lend other's goods being bought and sold for his. Looking at the evidence and documents, we are of the opinion that there is likelihood of deception because of the use of the word 'Nambeesan's' by the defendants in the selling of its milk product. It is held in Gor-Ray v. Gilray ((1952) 69 RPC 99), that instances of actual deception need not be proved if the court is otherwise satisfied of the probability of deception. It is also contended by the defendants that actual damages is not proved in the plaint. It is stated in the plaint that such action is likely to cause damages. Evidence adduced would show that there is likelihood of damages as public is likely to be deceived with the name 'Nambeesan's' and PW 3 also proved that he asked 'Nambeesan's Ghee' and what was given was the defendants' Ghee. This is not a case where one of the prayer in the plaint is for awarding damages. Case is filed for injunction against defendants. This is not a case where one of the prayer in the plaint is for awarding damages. Case is filed for injunction against defendants. Actual damage is not the question but likelihood of damage and since the defendants' mark is deceptively similar as held by us, likelihood of damage is clear especially when the defendant is selling similar goods. From the evidence adduced, it is clear in our view, that there is a likelihood that substantial section of the purchasing public will be misled believing that the defendants' goods are goods of the plaintiffs by use of the trade name or business name of the plaintiff by the defendants. 35. On a question of infringement of trade mark or in an action for passing off, the court has got its obligation to make its own opinion on the visual and phonetic basis. As observed by Earl Halsbury L.C. in the North Cheshire and Manchester Brewery Co. Ltd. v. The Manchester Brewery Co. Ltd. (1899 AC 84), the question whether one mark so nearly resembles another as to be likely to deceive is a question for the Court to decide. Where the case turns on phonetic resemblance, once the evidence has established how the marks are pronounced in use, Court has to decide it finally. On a comparison of the names used by the plaintiffs and the defendants the learned District Judge has found that the defendant's use of the word 'Nambeesan's is similar to that of the plaintiff's trade mark 'Nambeesan's and it is deceptively similar. We agree with the above conclusion. On a totality of the facts and circumstances and evidence, we are of the opinion that the learned District Judge was right in granting injunction as prayed for. 36. CMP No. 3377 of 1966 was filed contending that the appellant has changed the way of writing of the word G. K. Nambisan inasmuch as it is written boldly on its products the word 'G. K. Nambeesan'. The contention of the appellants that since the word 'GK' is prominently written before 'Nambeesan's now in all their products in terms of Section 106(2)(c) of the Act no further orders are necessary. Section 106(2)(c) of the Act provides that : "Notwithstanding anything contained in sub-section 1, the Court shall not grant relief by way of damages (other than nominal damages) or on account of profits in any case. Section 106(2)(c) of the Act provides that : "Notwithstanding anything contained in sub-section 1, the Court shall not grant relief by way of damages (other than nominal damages) or on account of profits in any case. *** *** *** *** (c) wherein a suit for passing off, the defendant satisfies the Court - (i) that at time he commenced to use the trade mark complained of in the suit he was unaware and had no reasonable ground for believing that the trade mark of the plaintiff was in use; and (ii) that when he become aware of the existence and nature of the plaintiff's trade mark, he forthwith ceased to use the trade mark complained of." According to our view, this section as such is not applicable as Section 106(2)(c) is applicable only when a relief is asked by way of damages. In awarding damages, the Court can look when he commenced the use of trade mark complained of in the suit and he was unaware of the trade mark of the plaintiffs and when he became aware of the existence of the same he changed the same. Here, it is a case for injunction against the use of the word 'Nambeesan's or 'Nambisan' or any word deceptively similar to the same. The 1st defendant as well as the 2nd defendant's father whose name is said to have been adopted for naming the factory was aware of the plaintiffs' trade mark and use of the word 'Nambisan's' as the 1st defendant was the Manager of the Calicut Depot and his father-in-law worked in the plaintiffs' company for a long number of years and later he was dismissed. Therefore, it cannot be stated that he was unaware and had no reasonable ground for believing that the trade mark of the plaintiffs' was used and he became aware of the existence of the plaintiffs' name only when he received the notice. In fact, such a contention was not raised before the Court below when the case was agitated. The CMP No. 3377 of 1996 was filed only at the time of argument. Since the petitioner defendant was aware of the trade mark, Section 106(2)(c) has no application. We have already held that 1st defendant's name is not Nambisan. The 1st defendant's community name is also not Nambisan. The CMP No. 3377 of 1996 was filed only at the time of argument. Since the petitioner defendant was aware of the trade mark, Section 106(2)(c) has no application. We have already held that 1st defendant's name is not Nambisan. The 1st defendant's community name is also not Nambisan. Therefore, the averment in the affidavit in support of the petition that the 1st defendant in a bona fide manner and honestly used his own name alongwith the community names as 'GK Nambeesan' cannot be accepted. 37. Now we will consider whether the terms 'G. K. Nambeesan' now used by the defendants will make any difference and whether word 'G.K.' now written prominently before the word 'Nambeesan' will clearly show that appellants' products are different from that of the plaintiffs ? Additional M.Os. produced to show that now the defendants uses that word 'G. K. Nambeesan' prominently in the labels, cartons etc. The addition of the word 'G.K.' prominently will, according to the appellants, make the whole difference. Accordingly to the plaintiffs, use of the mark 'G. K. Nambisan's' also amounts to passing off as Nambeesan is the prominent word. The word G. K. Nambeesan is deceptively similar to Nambisan's and is calculated to deceive the public. It is also denied by the respondents that the material objects sought to be produced are the containers and objects being presently sold by the appellants. According to the plaintiffs, these were made for the purpose of the case. It was also contended that the appellants continue to use the earlier emblems. It was argued that even the changed emblems produced are deceptively similar. Additional material objects now produced (For example, Addl. M.O. 10 Labels) would show that it is written as : "G. K. Nambeesan Pure (Emblem) Ghee G. K. Nambeesan Dairy" as against plaintiffs' Nambisan's Pure Ghee, Nambisan's D.V. Dairy Farm. Now, we will examine with respect to decided cases the effect of changes. 38. In the decision reported in K. R. Chinnakrishna Chetty's v. K. Venkatesa Mudaliar and another (AIR 1974 Madras 7), a Division Bench of the Madras High Court held that "Sri Andhal" is deceptively similar to that of "Sri Ambal" and addition of the word 'Radha' to it will not make slightest difference. After considering the decision reported in Corbova v. Vick Chemical Co. ((1951) 68 RPC 103) and Ruston and Hornby Ltd. v. Zamindar Engineering Co. After considering the decision reported in Corbova v. Vick Chemical Co. ((1951) 68 RPC 103) and Ruston and Hornby Ltd. v. Zamindar Engineering Co. (AIR 1970 SC 1649), the Madras High Court held as follows : "Though at one stage we considered that the addition of the word 'Radha' to the legend Sri 'Andal' makes all the difference, after our attention was drawn to the three cases referred to above, viz., (1) relating to the Vicks Vaporub, where the objection to the registration of the respondents' Vaporub which infringed the appellants' registered mark was sought to be got over by adding a word 'Karcsote' to the respondents' legend and (2) where the objection to the registration of the respondents' trade mark 'Rustam' was sought to be met by the addition of the word 'India' to the objected legend; and (3) where the word 'Bulova' was sought to be adduced to the legend 'Accutron' which legend was held to infringe the respondents' trade mark 'Accurist', we are persuaded to come to the opposite conclusion that the addition of the word 'Radha' to the legend Sri Andal will not make the slightest difference and that the view of the learned Judge is correct. The appellants' snuff sold under the trade name 'Sri Andal' the registration of which was objected to by the respondents, has been in the market for some years and the objection to its registration has now been finally upheld. The question for consideration now will be whether by the addition of the word 'Radha' to the objected legend makes a vital difference. When the two marks are compared side by side the question will be whether the addition of the word will make any vital difference. As observed by Stamp, J. in 1969 RPC 103 at p. 109. "Where imperfect recollection is relevant what has to be considered is how far the additional word is significant to prevent imperfect recollection and the resultant confusion." We are of opinion that the combination of the two words 'Radha's Sri Andal' is likely to be taken by Snuff users as the snuff manufactured and marketed by the appellant originally as "Sri Andal". The appellants' learned Counsel sought to distinguish the above three cases, on the ground that in the aforesaid decision the new word sought to be added was only the name of the country of manufacture while in the present case, the addition of the word 'Radha' to the legend 'Sri Andal' is a combination which has nothing in common with the respondent legend Shri Ambal. We are unable to accept the ground of distinction made by the learned Counsel. We are of opinion that there is a tangible danger that a substantial number of persons will confuse the appellants 'Radha's Sri Andal' mark applied for with the respondents' legend 'Sri Ambal Snuff". 39. Madras High Court in Klai Aerated Water Works Tiruchirappalli v. Rashid and others (AIR 1989 Madras 9), held that the label 'Sri New Kali Mark' is deceptively similar to the existing label 'Kali Mark' and by addition of the word 'Sri New' to it phonetic similarity is not lost. In the decision Essco Sanitations, Delhi, decree holder v. Mascot Industries (India), Delhi, judgment-Debtor (AIR 1982 Delhi 308), it was held by the Delhi High Court that plaintiff-decree-holder, a manufacturer of brass cocks and other sanitary wares, was selling these goods under the registered trade mark 'ESSCO'. By a decree of permanent injunction the defendant, judgment debtor who was also a manufacture in sanitary wares, was restrained from using the trade mark 'ESSO' as the same was found to be deceptively similar with the registered trade mark. During pendency of the suit, the defendant started using the trade mark 'OSSO'. The trade mark 'OSSO' adopted by the judgment-debtors is deceptively similar. Consequently, the various decisions cited, we are of the opinion that the addition of 'G.K.' prominently to the word 'Nambeesan' will not make any difference and the provision of Section 106(2)(c) is no protection to the appellants. The unwary customer may not be aware of the existence of another company with the name Nambeesan or whether the plaintiffs themselves have changed the name slightly by adding initials. They are not microscopically examining the two cartons side by side. 40. Next point raised by the appellants is that the appellants are now pasting a sticker in the packets with the following endorsement : "Nothing connected with the Nambisan's Dairy products". This is not a matter specifically raised before the District Court or in the appeal memorandum. They are not microscopically examining the two cartons side by side. 40. Next point raised by the appellants is that the appellants are now pasting a sticker in the packets with the following endorsement : "Nothing connected with the Nambisan's Dairy products". This is not a matter specifically raised before the District Court or in the appeal memorandum. According to us, a writing in a very small letters in a sticker that nothing connected with the Nambisan's Dairy products has no effect at all because we have already found that the defendants have intentionally and deliberately tried to use the mark 'Nambeesan' with a view to gain the reputation earned by the plaintiffs. We have also found that the word 'Nambisan's' have made distinctive mark and reputation in the market for the plaintiffs' milk products and the defendants' use of the word 'Nambeesan' or 'G. K. Nambeesan' is deceptively similar. We must bear in mind that large number of customers who purchase article like butter and ghee in the open market is not familiar with English language and the customers do not purchase these articles cautiously examining each and every statement made on the carton and the stickers. Normally, a customer who is acquainted with Nambisan's butter when visits the shop for purchase of butter of the plaintiffs may not be aware that the defendants also use the name 'Nambeesan' or 'G. K. Nambeesan' and by mere addition of a small sticker that it is not connected with Nambisan's Dairy Products, may not prevent the mischief that is sought to be done. 41. For the reasons stated above, there is no merit in the appeal. In the circumstances of the case, appeal is dismissed without costs. Appeal dismissed.