SAMARESH BANERJEA, J. ( 1 ) THE present appeal has been preferred by the plaintiff against an order dated 26th February, 1999 passed by the learned Additional District Judge, Alipor, 6th Court, dismissing an application for injunction under Order 39 Rule 1 of the Code of Civil Procedure in a passing off suit being Title Suit No. 3 of 1998. ( 2 ) IT is the case of the plaintiff that it is engaging in manufacturing and marketing of table wares and allied products made of crystal glass and opal glass of high quality. In the year 1994 with a view to diversity to high quality glass wares it entered into a technical tie-up with Doosan Glass of South Korea for the manufacture Of authentic crystal glass for the first time in India and such glass wares were launched by the plaintiff in 1996 under the trade mark SOLITAIRE. The range of crystal wares of the plaintiff marketed under such trade name includes beautifully crafted tumblers ; whisky glasses ; steam wares for brandy, wine, champagne, sherry, liquor, beer mugs, ice buckets, vases, bowls, ashtrays in a vide variety of cuts, sizes and shapes and have been sold extensively throughout the country and also have been exported and the sales of the plaintiff are increasing every year. The plaintiff has already applied for registration of its trade mark SOLITAIRE inter alia, in respect of table wares, glass wares, bar wares etc. It is claimed by the plaintiff that due to excellent quality and extensive publicity and sales of the products of the plaintiff the aforesaid trade mark SOLITAIRE has acquired great reputation amongst the trade and public and the trade and public associate the said trade mark exclusively with the plaintiff and the petitioner and none else. ( 3 ) IN June, 1998 the plaintiff came to know that the defendant company was advertising the trade mark SOLITAIRE in a most prominent manner all over the city of Calcutta and outside in the form of large hoardings and was offering for sale bar accessories under the said trade mark SOLITAIRE. ( 4 ) IT came to be known thereafter that the defendant had also launched alcoholic beverages in particular whisky under the same trade mark. ( 4 ) IT came to be known thereafter that the defendant had also launched alcoholic beverages in particular whisky under the same trade mark. ( 5 ) THE plaintiff through letter of its Attorney dated 22nd June, 1998 called upon the defendant to stop use of the said trade mark in respect of bar wares, glass wares and other products as the use of the said trade mark in respect of bar accessories and alcoholic beverages is likely to cause confusion amongst the public resulting in passing off or other form of confusion as to the source of the plaintiff/petitioner's product. The defendant by its reply dated 6th July, 1998 stated that the use of the trade mark SOLITAIRE in respect of glass wares and bar accessories was an inadvertent error and the defendant was taking steps to remove all such future references. The defendant, however, refused to stop of using such trade mark in respect of alcoholic beverages notwithstanding the objection of the plaintiff and the defendant contended that there would be no confusion by the use of the trade mark SOLITAIRE which has been used in conjunction with the world famous trade mark "gilbey's" and when the alcoholic beverages are totally different products from bar wares. It is also the contention of the plaintiff that claim of the defendant that expression "gilbey's SOLITAIRE" itself has been recognised and associated with a distinctive trade mark of the defendant is not tenable particularly when the application for registration of such trade mark was made by the defendant subsequent to that of the plaintiff and the glass wares produced by the plaintiff under the trade mark SOLITAIRE has already earned handsome reputation before the members of the public. ( 6 ) IT is the case of the defendant in the written objection to injunction application that it is a leading company and responsible for promoting internationally renowned brands of alcoholic beverages. Polychem is a part of Kalichand Group of companies which is an old and renowned industrial house in India. It has been engaged in diverse businesses and has experience of more than 20 years in manufacturing and marketing portable liquor. Polychem is a part of Kalichand Group of companies which is an old and renowned industrial house in India. It has been engaged in diverse businesses and has experience of more than 20 years in manufacturing and marketing portable liquor. W and A Gilbey Limited, which is a British company, is one of the world's largest wine and spirits companies and many of its products are sold under and identified by the trade mark and trade name GILBEY's. In India the said trade mark has been registered since 1940 which is still valid. The whisky under the trade mark GILBEY's SOLITAIRE was launched in the Indian market in and around December, 1997/january, 1998 and over the months it has acquired a reputation and goodwill equivalent to any of the other international brands manufactured and marketed by the defendant and the sales of products under such trade mark is already excess of Rs. 156. 71 lacs. Such trade mark was applied for in India on August 24, 1998. Around June, 1998 with a view to promoting its GILBEY's SOLITAIRE product in Calcutta, the defendant put up hoardings at certain locations in Calcutta, offering glass ware as a promotional gift for its GILBEY's SOLITAIRE whisky, but as soon as it came to know the aforesaid grievance of the plaintiff relating to his claim of proprietory rights in the trade mark SOLITAIRE in respect of glass wares of the defendant the hoardings and publicity materials complained of were stepped. The claim of the plaintiff that the defendant was attempting to pass off its products under the said trademark has been denied. The claim of the plaintiff that the trademark SOLITAIRE has become exclusively and solely identified with glass wares of the plaintiff and distinctive of its products has also been denied. ( 7 ) IT is also the case of the defendant that glass wares and alcoholic beverages are completely two different products and there is no scope for any confusion or deception for the customers. It has also been pointed out that the trademark SOLITAIRE has been used and registered by various companies in respect of diverse range of products. The allegation that user of such trade mark has caused any damage to the plaintiff or there is likelihood of any such damage has also been denied. It has also been pointed out that the trademark SOLITAIRE has been used and registered by various companies in respect of diverse range of products. The allegation that user of such trade mark has caused any damage to the plaintiff or there is likelihood of any such damage has also been denied. ( 8 ) BY the impugned order the learned Judge has refused the prayer of injunction made on behalf of the plaintiff being of view that the plaintiff failed to make out a prima facie case of passing off. ( 9 ) THE learned Counsel appearing on behalf of the appellant has assailed the order contending inter alia, that prayer for injunction was refused by the learned Judge completely on erroneous view of law that there cannot be passing off unless the two products are similar and cover the same field of activities. The following decisions have been relied upon for the purpose of establishing before the court as to what is the position of law in this regard and even though the two products may not cover the same commercial field, and may be completely different from each other, there may be passing off and, therefore, the court can grant any injunction. (1) 1986 PTC 154 ; (2) 1982 PTC 63 ; (3) 1998 PTC (18) page 47 ; (4) In the Trade Mark Registry 119, Certain other judgments as also have been referred to in the notes of argument though not produced at the time of hearing. ( 10 ) THE learned Counsel appearing for the appellant on the other hand has also addressed the court as to what is the correct position of law relying on different decisions. He has also tried to distinguish the decisions relied upon by the appellant and has also submitted inter alia, that the trial court rightly held that no prima facie case has been made out by the plaintiff for passing off and, therefore, no injunction can be granted and such order having passed by the learned Judge exercising a sound discretion, cannot be interfered with by the appeal court even if the appeal court may have a different view of the matter. He relied on the following decisions, 1979 (2) All E. R. 927. ( 11 ) BOTH the Counsels for the parties have also addressed the Court at length on merits. He relied on the following decisions, 1979 (2) All E. R. 927. ( 11 ) BOTH the Counsels for the parties have also addressed the Court at length on merits. ( 12 ) IT is, however, not at all necessary for this Court while hearing an appeal against the order refusing to grant temporary injunction in a passing off action to go into the merits of the case. ( 13 ) IN this appeal this Court is only called upon to examine in the matter of refusing the temporary injunction whether trial court has rightly exercised its discretion or the same is perverse and whether the three tests, but for fulfillment of which no injunction can be granted viz. , the prima facie case, the balance of convenience and the irreparable loss and injury, were correctly applied. ( 14 ) AS held by the Supreme Court in the case of Wander Ltd. and Anr. v. v Antox India P. Ltd. , 1990 (Supp) SCC 727: 1991 PTC 1 (SC), an infringement action is available where there is violation of specific property right acquired under and recognised by the statute ; in a passing off action the plaintiff's right is independent of such a statutory right to a trade mark and is against the conduct of the defendant which leads to or is intended or calculated to lead to deception. Passing off is said to be a species of unfair trade competition or of actionable unfair trading by which one person, through deception, attempts to obtain an economic benefit of the reputation which another has established for himself in a particular trade or business. The action is regarded as an action for deceit. The tort of passing off involves a mis-representation made by a trader to his prospective customers calculated to injure, as a reasonably foreseeable consequence, the business or goodwill of another which actually or probably, causes damage to the business or good of the other trader. ( 15 ) IN Earl Jowitt's Dictionary of English Law 'passing Off has been described as a wrong committed by a person who sells goods or carries on business etc. , under such a name, mark, description or otherwise in such a manner as to mislead the public into believing that the goods or business, etc. ( 15 ) IN Earl Jowitt's Dictionary of English Law 'passing Off has been described as a wrong committed by a person who sells goods or carries on business etc. , under such a name, mark, description or otherwise in such a manner as to mislead the public into believing that the goods or business, etc. is that of another person, ( 16 ) IN an action for passing off therefore it is necessary for the court to examine whether by using the same trade mark the defendant is trying to pass off his goods as that of the goods of the plaintiff and whether such a mis-representation is sought to be made by the defendant and an element of deceit is present and because of such deception the plaintiff suffers or there is likelihood of such sufferance. The conduct of the defendant therefore has to be such which leads to or is entitled or calculated to lead to deception. Unless the members of the public are likely to be deceived because of use of same trade mark that the goods sold by the defendant are the goods of the plaintiff, there cannot be passing off action. ( 17 ) WHETHER there has been such mis-representation by the defendant and whether the same leads to deception or there is likelihood of deception for which the plaintiff may suffer is a question of fact to be decided by the court under the facts and circumstances of each case on the evidence on records. ( 18 ) IT appears to us the trial court being fully conscious of such position of law on the material available before the trial court at that stage has come to a prima facie finding that there is no chance of such deception and the plaintiff has not been able to make out a prima facie case. ( 19 ) ALTHOUGH it has been submitted by the learned Counsel for the appellant, the learned Judge refused injunction merely because the two products are different, it appears to us that while passing the impugned judgment and order the learned Judge relied on the text book of R. Narayanan and was quite conscious as to when there can be passing off. It is recorded in his order that in case of passing off there must be a common field of activity or it may be one which is not actual but which is reasonable to be assumed by reasonable man from the use of the same or similar name and it is also possible for a trader to obtain protection in a field outside that in which his name is known if the proper inference to be drawn is that the use of that name in the new connection will mislead the public. ( 20 ) THE learned Judge is also quite conscious that the recent decisions show that passing off is not restricted to situations involving competing traders in the same type of business but included cases of false suggestions by the defendant that its business was connected with that of the plaintiff which would be capable of damaging plaintiffs goodwill and the whole question must be looked at from a business and commercial point of view and true test is whether the two sets of goods are so commonly dealt with by the same trade that his customers knowing his mark in connection with one set and serving it upon the other would be likely to suppose that it was used upon them also to indicate that they were his goods, and that for the plaintiff to succeed and get relied in an action for passing off goods besides showing that the marks are deceptively similar, it must be shown that on account of the deception the plaintiff is likely to suffer substantial damages. ( 21 ) IT appears to us that in examining whether the plaintiff has been able to make out a prima facie case each of such tests was applied by the learned Judge and it has been found by the learned Judge that no prima facie case was made out. ( 21 ) IT appears to us that in examining whether the plaintiff has been able to make out a prima facie case each of such tests was applied by the learned Judge and it has been found by the learned Judge that no prima facie case was made out. ( 22 ) THE learned Judge has found on available material after applying such tests that there is no deception or chance of deception for use of such trade mark by the defendant as the defendants are manufacturing liquor and they are the licenced users of the trade mark Gilbey's which enjoys world-wide goodwill in the field of alcoholic beverages and the whisky manufactured in India by the defendant bears the trade mark "gilbey's Solitaire" and the markers of the products are clearly indicated on the cartoons of whisky which can only be sold from a licenced shop and a consumer going to buy whisky from a shop can never be deceived that the whisky in question is a product of the plaintiff company and that the mark Gilbey's is well known to the alcohol consuming public and such products are purchased again knowing fully well that the same are manufactured by the defendant and not by the plaintiff. ( 23 ) IT has also been held by the learned Judge prima facie that there is no such deception or likelihood of deception as alcohol or glass wares do not belong to the same or similar class of goods and the use of impugned trade mark on whisky does not mislead the liquor consuming public and the plaintiff and the defendant are not competing with the same and similar nature products. It has also been found prima facie by the learned Judge that the plaintiff has not proved that because of use of such trade mark the plaintiff actually suffered loss or damage in respect of its goodwill or likely suffer the damage. ( 24 ) THE learned Judge has also held against the plaintiff on the question of balance of convenience or inconvenience and further held that the defendant has failed to prove that he will suffer irreparable loss and injury in absence of any order of injunction. ( 24 ) THE learned Judge has also held against the plaintiff on the question of balance of convenience or inconvenience and further held that the defendant has failed to prove that he will suffer irreparable loss and injury in absence of any order of injunction. ( 25 ) AS held by the Supreme Court in the case of Wander Ltd. v. Antox India P. Ltd. (Supra) in an appeal against an order exercising discretion, the Appellate Court will not interfere with the exercise of discretion of court of first instant and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily or capriciously or perversely or where the court had ignored the settled principle of law regulating grant or refusal of interlocutory injunction. It was further held that the appeal court will not reassess the material and seek to reach a conclusion different from the one reached by the court below, if the one reached by the court below was reasonably possible on the material. ( 26 ) KEEPING that principle in mind we find that the discretion used by the learned Judge in refusing injunction is quite sound and not at all perverse or against the principles of law. ( 27 ) ON the contrary we find being quite conscious of the law the learned Judge has exercised his discretion in a bound manner and the finding which was arrived at by him prima facie on the material available before him is quite reasonably possible to be arrived at on such material. ( 28 ) WE are also informed that hearing of the suit had already started and the examination of witness of the plaintiff is already complete and the last date of hearing was fixed on 6th of April, 2000. ( 29 ) FOR the reasons stated above, no interference is called for with the impugned order of the trial court. The appeal therefore, fails and the same is hereby dismissed. There will be no order as to costs. ( 30 ) THE trial court, however, shall hear out the suit with utmost expedition preferably within a period of four months. We make it clear that we have not gone into the merits of the case.