JUDGMENT- B.N. SHRIKRISHNA, J.:---This appeal is directed against an order dated 16th December 1999 made by the learned Single Judge dismissing the Notice of Motion and vacating the ad-interim order made by the Court on 19th February 1999. 2.The plaintiffs came to Court alleging that it is a wholly owned subsidiary of a multinational company which is highly reputed and deals in pharmaceutical and consumer products; that the 1st plaintiff has been carrying on business in India since about 1966, inter alia, in consumer products, medicines, detergents and pharmaceuticals. The 2nd plaintiff is the proprietor of an internationally well known mark VICKS. The plaintiffs gave the details of their promotional expenditure figures as exceeding several million Dollars per year. The 2nd plaintiff is also the owner of several Indian registered trade marks. The figures of the sales turn over of Vicks products sold by the 1st plaintiff is said to be in crores of rupees every year. Vicks pharmaceutical products, sub-branded as ACTION-500 (a remedy against cold, nasal congestion, etc.) has been continuously manufactured and markted in India extensively by the 1st Plaintiff and the sales turnover increased from Rs. 8 crores in 1988-89 to about Rs. 53 crores in 1997-98. The advertising and marketing expenditure given for the period of 1993-98 also runs into millions of rupees. The promotional and advertising expenditure in respect of ACTION-500 also runs into millions of rupees during the aforesaid period. It is the case of the plaintiffs that ACTION-500 pharmaceutical products, also bearing the housemark VICKS. were re-launched in the market under cartons and strips having distinctive get up and colour scheme. Samples of the distinctive cartons and strips are enclosed at Exhibit "E" and Exhibit "F" to the plaint. The plaintiffs allege that the defendants have copied and/or otherwise are marketing their products in cartons and strips which are deceptively similar to the plaintiffs cartons and strips and/or likely to cause confusion as to the origin of the goods. In short, the plaintiffs allege that the defendants are passing off their sub-standard products as those of the plaintiffs and have sought remedy by way of permanent injunction to restrain the defendants from doing so. In short, the plaintiffs allege that the defendants are passing off their sub-standard products as those of the plaintiffs and have sought remedy by way of permanent injunction to restrain the defendants from doing so. In the Notice of Motion, the plaintiffs sought temporary injunctions pending hearing and disposal of the suit and appointment of a Court Receiver as receiver of the offending cartons and strips marketed by the defendants and sold by distribution outlets and retailers. Though initially an ex-parte ad-interim order was made by the Court on 19th February 1999 in terms of prayers (a), (b) and (e) in the Notice of Motion, the learned Single Judge, after hearing the defendants, has vacated the ad-interim orders and dismissed the Notice of Motion. 3.We at once notice that the learned Single Judge has, without any matter of doubt, recorded his prima facie finding that, despite marginal variations and marginal dissimilarity, there is broad similarity between the cartons and strips of the defendants and the cartons and strips of the plaintiffs in which a pharmaceutical product stated to be a remedy against cold and congestion is being marketed. We need not be detained by discussions with regard to the manner in which such marks have to be assessed in a passing off action, for we are satisfied that the learned Judge has correctly applied the test and arrived at his conclusions, albeit prima facie, for the purpose of disposal of the Notice of Motion. The learned Judge has held against the present appellants (original plaintiffs) only on the grounds that prima facie he has been satisfied that the offending cartons and strips of the defendants were designed and marketed much prior to October 1998 when the appellants had re-launched their products in the cartons and strips which are enclosed at Exhibit "E" and Exhibit "F" to the plaint. 4.The first contention is that the learned Judge erred in not accepting that the inverted triangle in shaded green with red rectangular band containing the words "ACTION-500+" was a distinctive feature of the appellants mark. The learned Single Judge has accepted the contention of the respondents defendants solely by placing reliance on the material produced with regard to the art layout, printing and sale and marketing of the products prior to October 1998. The learned Single Judge has accepted the contention of the respondents defendants solely by placing reliance on the material produced with regard to the art layout, printing and sale and marketing of the products prior to October 1998. It appears to us that, at this stage at least, it would not be possible for the Court to reject the evidence on these aspects, though the evidence has been severely criticized by the learned Counsel for the appellants as fabricated, unreliable and untrustworthy. Nonetheless, even assuming that the offending cartons and offending strips were used for marketing of the products by the defendants, we notice that even on the offending cartons there is a triangle (though standing on its base) in shaded green with a red horizontal band across it containing the words "ACTION-500", though in capitals. The size of the two cartons also appears to be more or less similar. The question is, whether the plaintiffs were right in contending that the green triangle with a red band was a distinctive feature of their mark ? Unfortunately, we find that the learned Single Judge has brushed off this contention in summary fashion by stating that this had not been pleaded in the plaint and that this had been raised only in the affidavit in rejoinder by the plaintiffs. 5.Mr. Chidambaram, learned Counsel for the appellants, pointed out that, way back in the year 1985 the High Court of Delhi had occasion to consider the distinctive feature VICKS ACTION 500 and in the judgment (Richardson Vicks Inc. another v. Medico Laboratories)1, 1985 P.T.C. 167, it was found that a green triangle having a wide triangle in which another small triangle in red colour was shown with a red strip which appeared to be the distinctive feature of the mark attached to the cartons and strips in which the product VICKS 500 was sold. So it is not merely a say so on the part of the appellants that the green triangle is a distinctive feature of their mark. The question that arises is, merely because the triangle has not been referred to as a distinctive feature in the plaint, is the Court justified in ignoring it, at least at this stage while considering the Notice of Motion ? The question that arises is, merely because the triangle has not been referred to as a distinctive feature in the plaint, is the Court justified in ignoring it, at least at this stage while considering the Notice of Motion ? It is true that the plaint does not say that the distinctive feature of the appellants mark is the green triangle with the red band containing the words "ACTION-500". At the same time, the plaint does say that the defendants have copied the distinctive features of its mark and are passing off their products as the products of the appellants or at any rate in cartons and strips bearing marks which are deceptively similar to and cause confusion with the marks of the appellants. At this stage, the appellants were not aware of the defence, if any, the defendants were going to raise. It is only after the defendants came to Court and filed their affidavit in reply and contended that they had started marketing their product in their marks, prior to October 1998, that the occasion arose for the appellants to emphasise that the green triangle was their distinctive feature of their mark. This they did by the affidavit in rejoinder dated 13th July 1999 for the first time, vide paragraph 16. They also referred to the Television commercials which had been exhibited much prior to October 1998 which contained the triangle standing on its apex and pointed out that, in course of time, the vertices of the triangle had been rounded off by saying, ".......the distinctive triangle has been a feature of the plaintiffs' various VICKS pharmaceutical products, samples whereof are annexed at Exhibit "F" hereto. This distinctive triangle features not only in the VICKS pharmaceutical products manufactured and sold in India by the plaintiffs but also in VICKS pharmaceutical products manufactured by the plaintiffs group of companies internationally............... Accordingly, the distinctive triangle device is exclusively associated with the VICKS pharmaceutical products and/or the plaintiffs". Further the plaintiffs averred in the same paragraph: "Originally, the distinctive triangular device of the plaintiffs contained sharp edges as is revealed in the story board annexed as Exhibit "E" hereto. Accordingly, the distinctive triangle device is exclusively associated with the VICKS pharmaceutical products and/or the plaintiffs". Further the plaintiffs averred in the same paragraph: "Originally, the distinctive triangular device of the plaintiffs contained sharp edges as is revealed in the story board annexed as Exhibit "E" hereto. Thereafter over a period of time the plaintiffs have further developed its triangular device so that such sharp edges have been rounded since at least 1994." These averments in paragraphs 16(i) to (iii) are dealt with in the affidavit-in-sur-rejoinder (page 151) filed by Ramesh Kumar Lulla dated 7th September 1999 on behalf of the 1st defendant. Dealing with paragraph 16(i) to (iii), the averment is dismissed as an after-thought to bolster up the appellant's case, but there is no denial that the appellants' mark had a distinctive feature of the manner described in paragraph 16(i) to (iii). All that the 1st Defendant's Managing Director says in paragraph 23 is, "With reference to para 16(ii) of the affidavit in rejoinder, I say that the figure described as triangle which the plaintiffs have referred to several times one which has no definite shape and from time to time and which is clear from the comparison of the said figure on the carton and strip and other products of the plaintiffs such as Vicks Inhaler a photocopy whereof is hereto annexed and marked as Exhibit "9". The plaintiffs therefore cannot claim monopoly over all kind of triangular figures or restrain or prevent any other manufacturers from using any triangle. If the reasoning of the plaintiffs is accepted then, even the family planning department cannot use the triangle. Hereto annexed and marked as Exhibit "10" is a copy of the triangles used by various companies. I submit that these defendants are entitled to use their own triangle. In any case, the triangle used by these defendants is entirely different from the figure used by the plaintiffs. Both are dissimilar and therefore plaintiffs cannot ask this Hon'ble Court any injunction against the defendants. If at all, then it is the plaintiffs who are guilty of counterfeiting the 1st defendant's product which is much prior to the plaintiffs' products now being sold by the plaintiffs under its present packaging." Again, in paragraph 24, there is denial that the look and feel of the defendants' triangular device is similar to the one used by the plaintiffs. 6.In our judgment, after having alleged the case which they are required to , namely, that the offending cartons and strips of the defendants contained deceptively similar marks or marks which are likely to cause confusion, if the plaintiffs desired to add to it by pointing out that the distinctive feature was the triangle with red band as described, the same could not have been rejected as being inconsistent with the pleadings. After all, the test would be this : Nothing prevents the plaintiffs from amending the plaint and giving further and better particulars of the distinctive feature, though the contention of the appellants has been that it is not obligatory for the plaintiffs to aver what the distinctive feature is as long as there is one which is discernible to the practised eye of the Court. If at all, at any stage the plaintiffs amend the plaint and puts on record the distinctive feature, the plaintiffs cannot be shut out from doing so. Similarly, in the first instance, at an interlocutory stage, affidavits are the pleadings. It is not as if the defendants have been caught unawares. From the time the plaintiffs pleaded in their affidavit in rejoinder dated 13th July 1999 that the green triangle of the manner described was the distinctive feature of their mark, the defendants had ample opportunity to deal with the said facet of the case and demonstrate that at no point had the appellants used such a triangle or one substantially similar thereto. In our view, the defendants took the stand that the cartons had been designed by it prior to October 1998 forgetting that the cartons bearing the green triangle which appears to have been accepted as the distinctive feature of the appellants' mark way back in 1985 and has been expressly so averred to be so in the affidavit in rejoinder. We are not much impressed with the arguments of Mr. Shah that Order 6, Rule 4 of the Code of Civil Procedure would require the Court to shut out consideration of what is averred in the affidavit in rejoinder, at any rate at the interlocutory stage. We are of the view that the entire material on record based on affidavits permitted to be placed on record, of both sides, should have been looked at and the distinctive feature determined by the Court on the basis of the said affidavits. We are of the view that the entire material on record based on affidavits permitted to be placed on record, of both sides, should have been looked at and the distinctive feature determined by the Court on the basis of the said affidavits. Upon a consideration of the material placed on record, we are of the view that the following facts are prima facie found : (a) The appellants have been using their distinctive green triangle as the distinctive feature of their marks right from the year 1985. (b) The defendants might have brought all their carton and strips into the market in or about May 1997. (c) There is no manner of doubt that the carton and strip in which the product is manufactured by the defendants is deceptively similar to or at any rate causes confusion about the origin of the products contained in cartons bearing the mark. 7.We agree with the broad reasoning of the learned Single Judge that the true test to be applied in a passing off action is not keeping the two marks side by side and comparing them, but one of imperfect recollection of the full details of the mark seen by an ordinary man of imperfect mental faculties. Tested on this anvil, the two marks are similar and the dissimilarity pales into insignificance as prima facie found by the learned Single Judge himself. In our view, the green triangular mark was a distinctive feature of the mark of the appellants and appears to have been used for a considerable length of time even before October 1998, at least from 1985 onwards. In these circumstances, there was a prima facie case made out by the appellants that at least by using the green triangle with a red bad containing the words "ACTION", the defendants' mark was deceptively similar to or likely to confuse with the appellants' mark. 8.One more feature of the case which we need notice is that though the defendants emphatically took the stand that they had carried out the art work, lay out and the printing of the cartons much before October 1998, i.e. sometime in May 1997. 8.One more feature of the case which we need notice is that though the defendants emphatically took the stand that they had carried out the art work, lay out and the printing of the cartons much before October 1998, i.e. sometime in May 1997. The affidavit of Deepak Acharya, dated 16th March 2000, filed in this Appeal proceedings by the appellants places on record that, even as late as November 1998, the respondent-defendants were using cartons which are totally distinct and different from the distinctive cartons and strips used by the appellants. It is also stated in the said affidavit that the product of the respondents was being sold in November 1998 also in a carton and strip totally dissimilar to the ones which they claim to have adopted from May 1998 itself. The only answer given in the reply of the 1st defendant's Managing Director, Ramesh Kumar Lulla, dated 15th April 2000, to this fact is that there is no law under which the respondents could not have used the earlier cartons also and that they were not prohibited under any law from simultaneously marketing their products in both the old and the newly designed cartons. There is doubtless no legal prohibition against the course of conduct adopted by the respondents in marketing their products simultaneously in the old cartons and the newly designed cartons. In our view, unless a manufacturer intends to confuse the public, the manufacturer would do well to market his product in a distinctive carton at a given time. It is possible, that the lay out, get up and appearance of the cartons may change from time to time, but to accept the story of the respondents that simultaneously they would be using old and new cartons strains our credulousness. This fact may be supportive of the contention of the appellants that the documentary evidence produced by the respondents to demonstrate that their product was marketed prior to October 1998 is suspect. We may, however, not enter upon that area as, for the purpose of the disposal of this appeal, we have assumed that the prima facie finding made by the learned Single Judge that the product was marketed in the offending cartons and strips from May 1997 may be accepted. We may, however, not enter upon that area as, for the purpose of the disposal of this appeal, we have assumed that the prima facie finding made by the learned Single Judge that the product was marketed in the offending cartons and strips from May 1997 may be accepted. Even then, it appears to us that the offending cartons and strips contain a distinctive feature, namely, the green triangle with shaded green colour containing a red horizontal band with the marks "ACTION" which was a distinctive feature of the appellants which is being copied or attempted to be used in the marks of the respondents for passing off their products as the products of the appellants from May 1999, on the respondent's own admission. 9.It is unnecessary for us to go into the number of authorities cited at the bar for the principles are clear and have been rightly followed by the learned Single Judge except on a factual aspect where he appears to have taken a view which does not appeal to us. 10.We may only refer to a judgment of this Court in (James Chadwick Bros. Ltd. v. The National Sewing Thread Co. Ltd.)2, A.I.R. 1951(38) Bom. 147, wherein the Court emphasised that, in a situation like this, the Court should decide for itself what was the distinguishing or essential feature of the plaintiffs' trade mark and then look at the trade mark of the defendants, ask itself whether there was any resemblance of the trade mark of the defendants to that distinguishing or essential feature. This judgment was carried in appeal to the Supreme Court and we are informed at the bar that the Appeal came to be dismissed by the Supreme Court in the judgment reported in (National Sewing Thread Co. Ltd. v. James Chadwick Bros. Ltd.)3, A.I.R. 1953 S.C. 357. With respect, we agree with the test postulated by the Division Bench of Chagla, C.J., in James Chadwick's case (supra) as the right test to be applied in situations like the present. 11.Applying this test, we are of the view that the plaintiffs have made out a prima facie case and that the injunctions sought, in such form as is necessary to meet the facts of the case, ought to be granted. 12.Mr. 11.Applying this test, we are of the view that the plaintiffs have made out a prima facie case and that the injunctions sought, in such form as is necessary to meet the facts of the case, ought to be granted. 12.Mr. Shah strenuously urged that the appellants have registered their trade mark only with the words "VICKS" and entered a disclaimer in respect of the word "ACTION" and the numeral "500" and, consequently, the appellants are not entitled to any relief. This contention does not appeal to us as it is settled law that, notwithstanding a disclaimer for the purpose of registered trade mark, a passing off action would clearly lie. (See in this connection, the judgment of the Supreme Court in (Registrar of Trade Marks v. Ashok Chandra Rakhit Ltd.)4, A.I.R. 1955 S.C. 558 and (Burroughs Wellcome (India) Ltd. v. Uni-Sole Pvt. Ltd. and another)5, 1998(9) S.C.C. 531 . 13.In the result, pending hearing and disposal of the suit, the respondents, its Directors, Proprietors, partners, owners, servants, subordinates, representatives, stockists, dealers, agents and all other persons claiming under them are restrained by an order and injunction of this Court from manufacturing, selling, advertising or offering to sell any products under any mark, cartons or strips bearing the distinctive feature of green triangle with a red band containing the word "ACTION" or any other deceptively similar mark or any mark which is likely to cause confusion with the mark of the appellants as depicted in Exhibit "E" and Exhibit "F" to the plaint so as to pass off or enable others to pass off defendants' goods as that of the plaintiffs' goods or use the offending strips as found in Exhibit "I" to the plaint. Notice of Motion made absolute accordingly. 14.Appeal allowed. Costs to be the costs in the cause. 15.In view of the Appeal having been allowed, nothing survives in Notice of Motion No. 158 of 2000 which is dismissed as infructuous. 16.Issuance of certified copy expedited. 17.Parties to act on an ordinary copy of this order duly authenticated by the Associate of this Court. Appeal allowed. -----