S. K. AGARWAL, J. ( 1 ) ADMIT. We heard Mr. P. Chidambaram, learned Senior Advocate for theappellant and Dr. A. M. Singhvi, learned senior advocate for the respondent and weretaken through the record. ( 2 ) THIS appeal by appellants (plaintiffs) is directed against the order dated 1 7/09/1999 passed by learned Single Judge of this Court on an applicationfiled under Order 39, Rules 1and 2 of the Code of Civil Procedure, 1908 (for shortcpc) holding that the respondent (defendant) was neither guilty of piracy nor copyingof the disc of appellants being distributed as a free collectible with their product "laysand Cheeto Chips", nor there was any unfair or dishonest competition on the part ofthe respondent, in distributing such discs with their product uncle Chipps : and onlyrestraining the respondent from distributing free collectibles, in the shape of rounddisc having groove/notch or grooves/notches. ( 3 ) THE focus of the present case is "advertising/promotional campaign" on T. V. under which the plaintiffs offered a TAZO disc inside each packet, with which childrencould play some games, claimed to be unique to them. ( 4 ) APPELLANTS (plaintiffs) filed a suit seeking a decree of permanent injunctionrestraining the respondent, their subsidiaries, associate companies, affiliates, agents,principal officers and servants or anyone else acting for and on their behalf fromdistributing free collectibles with their products in the form of "circular discs with/without grooves" or any other name which is identical or deceptively similar to theplaintiffs patented disc TAZO , thereby amounting to passing offsuch discs as thatof the plaintiffs or as connected with the plaintiffs resulting in dilution of their brandvalue in the circular discs,and seeking further injunction restraining the defendantsfrom using such discs, which were substantial reproduction or a colourable imitationof TAZO discs, thereby amounting to infringement of the plaintiffs copyright or in anyother manner unfairly competing with the plaintiffs by illegally appropriating theplaintiffs marketing methods. ( 5 ) IN the suit appellant No. 1 claimed to be a subsidiary of Pepsi Co India Holdingsltd which in turn is a subsidiary of appellant No. 2 Pepsico Inc. , a corporationregistered under the laws of the United States of America: they are engaged in themanufacture, marketing and trade of beverages, snack products etc. ( 5 ) IN the suit appellant No. 1 claimed to be a subsidiary of Pepsi Co India Holdingsltd which in turn is a subsidiary of appellant No. 2 Pepsico Inc. , a corporationregistered under the laws of the United States of America: they are engaged in themanufacture, marketing and trade of beverages, snack products etc. , includingpotato chips sold under brand names "lays and Cheetos" and had launched apromotional campaign by giving "free collectibles" in the form of round patenteddiscs with/without grooves marked TAZO with each packet of chips. These discstazo were registered under U. S. Patent No. 5672087, dated 30/09/1987, the drawings of which were reproduced in the patent while recording it as aninvention. These discs are circular and have grooves: one big groove can be utilisedfor making other circular disc fly; it is 4. 5 cms in diameter and 1. 0 mm thick. Thesediscs can be used for playing certain games, two of which are: (a) connect n Fly;and (b) Stack, Whack and Win. Under the first game the two Tazos (discs) areconnected in the special bigger grooves made for the purpose. like a catapult andwhen one of the TAZO is pulled the other TAZO could fly. While in the other game apile of TAZO is made with pictures face down with player taking turns to whack thepile with the striker. Characters are printed on one side and trade mark printed on theother side. These are introduced in the market in series (for short TAZO discs ). ( 6 ) THE campaign involved giving of a free TAZO disc which was kept inside everypacket of snack food. These were having various cartoon figures and comic characterswhich were favourites of kids. Extensive advertisement and publicity was mainlydirected at young children so as to induce them to collect the TAZO discs whichwould lead to boost the sales of the plaintiffs products. These were having various cartoon figures and comic characterswhich were favourites of kids. Extensive advertisement and publicity was mainlydirected at young children so as to induce them to collect the TAZO discs whichwould lead to boost the sales of the plaintiffs products. ( 7 ) IT was further pleaded that this type of promotional campaign for promotion oftheir snack food products was prevalent in several countries throughout the worldsince 1992-93 : that in India this campaign was launched in September, 1998 withgreat success; that the respondents were their competitor and businessrival,manufacturing and selling variety of snack products including potato chips beingmarketed under the brand name "uncle CHIPPS": the plaintiffs came to know thatrespondent (defendant) in order to boost their sales was intending to launch apromotional campaign distributing discs marked AMAZZO as free collectibles withits product "uncle Chipps" which were identical to the plaintiffs TAZO discs. It wasthus pleaded (i) that the respondent was attempting to ride on the hard built reputationof appellants which amounts to an act of piracy and that it was trying to encash uponthe reputation and goodwill of the appellants by distributing free discs by copying thediscs and their feature marks (ii) that the distribution of the "free discs by therespondent was an attempt on their part to infringe appellants copyright in the saiddiscs and it was also an attempt to pass off respondent s products as those of theappellants and (iii) that distribution of the disc under the mark AMAZZO was an unfaircompetition on the part of the respondent inasmuch as not only the AMAZZO discs being distributed were similar to TAZO but there was also a phonetic similaritybetween the two marks. ( 8 ) THE respondent filed written statement pleading that there was no allegation ofinfringement of the alleged trade mark since TAZO was neither registered under thetrade and Merchandise Marks Act, 1958, nor under the Designs Act or Copyright Act,1957. Therefore, the suit was not maintainable. It was pleaded, that it was not a caseof passing off as there were radical differences between the two promotional items . Therefore, the suit was not maintainable. It was pleaded, that it was not a caseof passing off as there were radical differences between the two promotional items . that there cannot be any passing off in respect of the promotional campaign where nopassing off is alleged in respect of the main product namely, "packets of potatochips": that the name AMAZZO was an adaptation of the word amazing and arrivedat by telescoping the Hindi phrase "aao Maza Lo", consciously chosen so as torhyme with the catchline of the defendants advertising campaign "aao Maza Lo". Itwas also pleaded that there were radical phonetic and visual differences betweenpromotional marks AMAZZO and TAZO; the practice of offering such promotionalitems/gifts including discs to children owed its origin to the well established conceptof pogs of milkcap games. ( 9 ) IT was further pleaded that the respondent was amongst the first in the country tointroduce packaged potato chips in airtight polybags in the year 1987 and hadestablished immense reputation and goodwill in the market over the years; theproduct of the respondent was being marketed under the name and style of "unclechipps" and had become a house-hold name in India and it was rated by "a and M"magazine in their survey as amongst the top 30 most admired marketing companiesin India for the past two years, and that the respondent s company was pioneer inseveral other marketing and sales promotion schemes; in order to popularise theirbrand "uncle Chipps", the respondent had been giving free collectibles in the form ofgifts including pen and diary, lunch box, tatoos, crystal jar etc. These promotionalschemes had been always successful and added to their brand equity and strength toits trade name "uncle Chipps". Learned single Judge declined to grant complete ad-interim injunction whiledisposing of the application under Order 39 Rules 1 and 2, Civil Procedure Code and held that therespondent was neither guilty of piracy nor copying of the disc of appellants fordistribution as a free collectible with their product,nor there was any unfair or dishonestcompetition on their part by distribution of such disc. However, respondent was onlyrestrained from distributing a free collectible in the shape of TAZO disc havinggrooves/notch or grooves /notches etc with its product. This order is under challengein this appeal. However, respondent was onlyrestrained from distributing a free collectible in the shape of TAZO disc havinggrooves/notch or grooves /notches etc with its product. This order is under challengein this appeal. ( 10 ) LEARNED counsel for the appellants argued that despite a finding in their favourthat the appellants have a patent in TAZO disc and could claim restraint againstrespondent-defendant for distributing grooved discs yet, a complete injunction intheir favour was not granted. Learned counsel for the respondent argued to thecontrary. ( 11 ) PERUSAL of the copy of U. S. Patent No. 5672087, dated 30/09/1987 inrespect of the TAZO discs filed by the appellants shows that the specifications of thisdisc in detail were given at the time of getting the said patent. Relevant portion of thepatent document reads as under :- "various other types of discs or chips are known in art form the popular"frisbees" or throw plates to games of chips,discs and sets of blocks whichcan be assembled to produce several different structures: many of thesediscs of chips had earlier been patented". ( 12 ) THEREAFTER several earlier patents of discs in the other countries were alsonoticed,and under the heading "summary of invention it was recorded. "the present invention refers to flat pieces preferably discs or chips ofcircular shape made of flexible material such as plastic, each disc or chip hasseries of slots or notches that are spaced by equal distances alongsidecircumferential edge and extend radically towards the centre of the disc. Oneof these slots or notches is wider, longer and has a different configurationfrom the remaining slots which are similar and have a U-shape. This differentconfiguration allows the launching of the disc or chips into the air thusproviding the pieces of this invention with a function which is different,moreadvantageous, and not found in the inventions of the prior art. " ( 13 ) THE patentee cannot get more than what he had claimed. The patent itself tooknote of the fact that there were several other patents of the discs already existing andthe TAZO disc was patented because it was found to have different forms of thegrooves. It mentions about one Italian Patent describing circular polygonal discs withslots which could be assembled by placing the discs perpendicular to each other andplacing the slot of one disc within the slot of a second disc,and so on. It mentions about one Italian Patent describing circular polygonal discs withslots which could be assembled by placing the discs perpendicular to each other andplacing the slot of one disc within the slot of a second disc,and so on. Three earlierpatents in respect of different type of circular discs having different specificationsand with which other games could be played were also noticed. ( 14 ) TO repeat the date the patent was granted for circular disc known as TAZO, asthere were large number of circular discs in market therefore, appellants cannotclaim copyright in the mould or drawings of every other type of circular discs which isnot having configuration of TAZO disc. The appellants may have a copyright in thedesigns, moulds and patented grooved circular disc but they cannot claim anycopyright in respect of each and every type of moulds and drawings of discs,which donot have specifications mentioned in the said patent. We may mention here that as per the settled law there can be no copyright on anidea or themes etc. The violation, if any, in such cases can be only to the form ofexpression. The same idea can be developed in a different manner. Source beingcommon similarities are bound to occur. It is only when the similarities are fundamentalor substantial, which at once lead to the conclusion of violation of a copyright, that afinding of piracy can be recorded. In such cases the allegations of piracy must beproved by a clear and cogent evidence. ( 15 ) SUPREME Court in R. G. Anand Vs. Delux Films and Others, (1978) 4 SCC 118 after considering several earlier judgments, on the subject, laid down the followingprinciples relating to copyright :- "1. There can be no copyright in an idea, principle, subject matter, themes,plots or historical or legendary facts and violation of the copy right in suchcases is confined to the form, manner and arrangement and expression ofthe idea by the author of the copyrighted work. 2. Where the same idea is being developed in a different manner, it ismanifest that the source being common, similarities are bound to occur. Insuch a case the courts should determine whether or not the similarities areon fundamental or substantial aspects of the mode of expression adopted inthe copyrighted work. If the defendant s work is nothing but a literal imitationof the copyrighted work with some variations here and there it would amountto violation of the copyright. Insuch a case the courts should determine whether or not the similarities areon fundamental or substantial aspects of the mode of expression adopted inthe copyrighted work. If the defendant s work is nothing but a literal imitationof the copyrighted work with some variations here and there it would amountto violation of the copyright. In other words, in order to be actionable the copymust be a substantial and material one which at once leads to the conclusionthat the defendant is guilty of an act of piracy. 3. The surest and safest test to determine whether or not there has been aviolation of copyright is to see if the reader, spectator or the viewer afterhaving read or seen both the works is clearly of the opinion and gets anunmistakable impression that the subsequent work appears to be a copy ofthe original. 4. Where the theme is the same but is presented and treated differently sothat the subsequent work becomes a completely new work, no question ofviolation of copyright arises. 5. Where, however, apart from the similarities appearing in the two worksthere are also material and broad dissimilarities which negative the intentionto copy the original and the coincidences appearing in the two works areclearly incidental no infringement of the copyright comes into existence. 6. As a violation of copyright amounts to an act of piracy it must be proved byclear and cogent evidence after applying the various tests laid down by thecase law. 7. Where, however, the question is of the violation of the copyright of stageplay by a Film Producer or a director the task of the plaintiff becomes moredifficult to prove piracy. It is manifest that unlike a stage play a film has amuch broader prospective,wider field and a bigger background where thedefendants can by introducing, a variety of incidents give a colour andcomplexion different from the manner in which the copyrighted work hasexpressed the idea. Even so, if the viewer after seeing the film gets a totalityof impression that the film is by and large a copy of the original play, violationof the copyright may be said to be proved. " ( 16 ) APPLYING the above principles it is clear the appellants have a prima facie caseonly in respect of the designs and grooves of discs having patented slots andnotches and not in respect of any other disc having different slots or notches. " ( 16 ) APPLYING the above principles it is clear the appellants have a prima facie caseonly in respect of the designs and grooves of discs having patented slots andnotches and not in respect of any other disc having different slots or notches. Theappellants cannot claim an injunction against any other party which intends tomanufacture or market of distribute other types of circular discs. ( 17 ) NEXT it was argued that the appellants have exclusive right in advertising/promotional campaign in India namely giving/distributing of a free TAZO disc withtheir product was unique to their campaign and that unlike other promotional campaignthe TAZO disc is at the core of the campaign. The entire effort of the appellants hasbeen to build a mark for its products surrounding this disc and that advertisingcampaign required protection in a passing off action. It was argued that the descriptivematerial, such as slogans or visual images and the advertising campaigns isassociated with the appellants products and has become part of the goodwill of theirproduct. It was argued that as this idea belongs to the appellant, therefore, therespondents should have been restrained from copying the idea/promotionalcampaign. Reliance was placed on two decisions one in R. C. Products Pty. , Ltd. ,vs. S. C. Johnson Pty. Ltd. , 26 IPR 98 (Federal Court of Australia) and the other inellida Gibbs Vs. Colgate Palmolive 1983 FSR 95 (U. K. ). ( 18 ) MATERIAL placed on record by the respondents reveals that giving of a circulardisc as a free collectible is quite common all over the world. It shows that the origin ofthe circular disc started sometimes during the World War II with the collection of milkcaps by the children, who used to play common game with them on the lines of stackand win. This was later followed to promote a new drink called "passion Orangeguava Juice" by using the milk caps. On the milk caps, the work POG used to bewritten. Such caps or circular discs came to be known as POGs. Kids begancollecting them and using them, to play a game related to marbles. The object of the,game was to collect the most POGs possible from the other people playing the game. The POGs then started coming in metal or plastic and weighed anywhere froma couple of ounces to half a pound. One of the reasons,the discs had becomepopular was they were rather inexpensive. The object of the,game was to collect the most POGs possible from the other people playing the game. The POGs then started coming in metal or plastic and weighed anywhere froma couple of ounces to half a pound. One of the reasons,the discs had becomepopular was they were rather inexpensive. Most of the kids had their favourite brandof POGs to buy. The POGs then started having Disney characters on them and theybecame popular and attractive amongst the younger kids and collectors. ( 19 ) MATERIAL placed on record further shows that the free gifts are given by severalcompanies including Coca Cola, Kellog s and Nestle. Giving of these free collectiblesowes its origin to the concept of "milk caps games" and the concept of POGs. In factthe survey report filed by the appellant itself mentioned this fact at pages 121, 134,142, 144, 169, 180, 197, 223 to 228. Therefore,merely giving of a free disc would notamount to infringement of a copyright. This idea cannot be claimed to be original tothe appellants. ( 20 ) IN the case R. C. Products Pvt. Ltd. , (Supra) relied upon by learned counsel forthe appellant the fact situation was entirely different. There was adaptation of theelements of advertisement or get-up by the respondent and there was material onrecord clearly suggesting that the subsequent TV Advertisement was a copy of theearlier one. Even the presenter of the advertisement was the same, which is not so inthis case. In fact,there is no allegation or pleadings regarding the adaptation of anyelement of advertisement of the appellants by the respondent. Facts of the other case (Ellida Gibbs s case (supra), are also different. In that case tree theme was copiedfor main product which is not the case here. ( 21 ) THE games and uses of the TAZO discs given by the appellant are also entirelydifferent from the AMAZZO discs offered by the respondents. Only two games couldbe played with the TAZO disc being offered by appellants whereas the disc beingoffered by the respondents were meant to be used as fashion accessories, decorativeitems and for playing games based on holes. Further the advertisement/promotionalelements of the two commercial advertisements,appeared to be entirely differentwhen same were shown in the court, during course of hearing. ( 22 ) THE appellants can have no exclusive right in advertising/promotional campaigni. e. giving/distributing of a free circular disc with their product. Further the advertisement/promotionalelements of the two commercial advertisements,appeared to be entirely differentwhen same were shown in the court, during course of hearing. ( 22 ) THE appellants can have no exclusive right in advertising/promotional campaigni. e. giving/distributing of a free circular disc with their product. Even otherwise thepromotional campaign involves an idea which cannot exclusively belong to theappellant. Therefore, we find no merit in the contention. ( 23 ) NEXT it was argued that the word AMAZZO 1s deceptivety similar to the wordtazo and there is both visual and phonetic similarity. Learned counsel placedreliance on a large number of decisions relating to the use of composite words,where the respondents were restrained from using visually of phonetically similarmark on their products such as nagraj and Nagesh (comics) in Raja Pocket Booksvs. Radha Pocket Books, 1997 PTC 355 : cleanzo and Praveen Cleanjo (soaps)in Metropo Vs. Praveen Industries 1997 PTC 779 : hiralal and Himatlal (Bidis) inhiralal Vs. Ganesh Trading Company, AIR 1984 Bom 218: dubble andbubbles (soaps) intata Oil Mills Co. , Vs. Wipro Ltd. , AIR 1986 Delhi 345; nirexand Mirex (chappals) in Nirex Inds. Vs. Manchand Footwear, 1984 PTC page 97, lakshmandhara and Amritdhara (ayurvedic medicine) in Amritdhara Pharmacyvs. Satyadeo Gupta, AIR 1963 SC 449 and ambal and Andal (snuff) in KRCKChettiar Vs. Shri Ambal and Co. , 1969 (2) SCC 131 . ( 24 ) IT was argued that the learned Single Judge misunderstood the nature of thegrievance and compared uncle Chipps with lays and erroneously concluded thatthe word TAZO and AMAZZO have completely different pronunciation and it wouldcause confusion among the persons who purchased the product despite respondentshaving admitted phonetic similarity in suffix of the two words. ( 25 ) LEARNED counsel for the respondent argued that there was no phonetic similaritybetween the words AMAZZO and TAZO and all cases relied upon by the appellantspertain to category where main product was the same and there was identity in thetrade dress, get-up and label of the product apart from the phonetic similarity. It wasfurther argued that there was neither any phonetic similarity in product traded in orsold by the parties nor there was any similarity between the getup and the trade dressof the two products,thus there was no likelihood of deception of the targeted customers. Reliance was also placed on several cases having phonetically similar marks yet noinjunction was granted. It wasfurther argued that there was neither any phonetic similarity in product traded in orsold by the parties nor there was any similarity between the getup and the trade dressof the two products,thus there was no likelihood of deception of the targeted customers. Reliance was also placed on several cases having phonetically similar marks yet noinjunction was granted. One such case is Borachem Industries Pvt. Ltd. , Vs. Fabril Gasosa, Compal Panjim, 1991 PTC 274 where the composite words usedwere bonila and Bonita . ( 26 ) WE have considered the rival contentions. Section 2 (d) of the Trade andmerchandise Marks Act, 1958 defines the word deceptively similar. A mark shall bedeemed to be deceptively similar to another being it so nearly resembling the othermark as is likely to deceive or cause confusion. For deciding the question ofdeceptive similarity, the courts have laid down broad factors to be considered. Reference can be made to M/s. Hiralal Parbhudas Vs. Ganesh Trading Companyand Others AIR 1984 Bom, 218, wherein it has been held that: (a) Marks are remembered by general impressions or by some significantdetail rather than by a photographic recollection of the whole. (b) Overall similarity is the touchstone. (c) marks must be looked at from the first impression of a person of average884 intelligence and imperfect recollection. (d) overall structure, phonetic similarity and similarity of idea are importantand both visual and phonetic tests must be applied, (e) marks must be compared as a whole, microscopic examination beingimpermissible and. (g) the broad and salient features must be considered for which the marksmust not be placed side by side to find out difference in design. It was further held that:in addition, the nature of the commodity, the class of purchasers, the mode ofpurchase and other surrounding circumstances must also be taken into consideration. ( 27 ) THEREFORE, reference to every case cited by the parties would not be of any realassistance. Questions which arise for consideration in each case ar questions offact. Reference in this regard can be made to the following observation of thesupreme Court in Amritdhara Pharmacy s case (supra), 1963 SC 449:"the Act does not lay down any criteria for determining what is likely todeceive or cause confusion. Questions which arise for consideration in each case ar questions offact. Reference in this regard can be made to the following observation of thesupreme Court in Amritdhara Pharmacy s case (supra), 1963 SC 449:"the Act does not lay down any criteria for determining what is likely todeceive or cause confusion. Therefore, every case must depend on its ownparticular facts, and the value of authorities lies not so much in the actualdecision as in the tests applied for determining what is likely to deceive orcause confusion. " (emphasis supplied) ( 28 ) APPLYING the above principles it is clear that one of the important factors to beconsidered, is the class of purchasers. Mere look at the promotional campaignreveals that both names i. e. , TAZO or AMAZZO are written in English. Thus, thepromotional campaign is meant to attract urban elite children of middle class orupper middle class families. The children who are well versed in English and cancertainly distinguish between TAZO and AMAZZO and as such there is no likelihoodof confusion. In this regard we are also fortified by the observations made by adivision bench of this Court reported as Kellogs and company Vs. Praveenkumar 1996 Vol. 2 Apex Decisions 465. The court after considering several cases,rejected the plea of similarity or likelihood of confusion or plea of fraud based onimperfect memory and declined to interfere with the order of the learned Singlejudge. In fact, in Amritdhara s cases (supra) relied upon by the appellants. Supremecourt considered the persons who were likely to purchase that Ayurvedic Medicinewould be both villagers townfolk, literate as well as illiterate and observed as under :- "where the trade relates to the goods largely polo to illiterate or badlyeducated persons it is no answer to say that a person educated in Hindilanguage would go by the etymological of ideological meaning". ( 29 ) IN the present case, persons who would go to purchase the snacks are not likelyto be illiterate or badly educated persons. They would be those who belong to aclass,who are fairly educated in English and would be table to distinguish betweentazo and AMAZZO, there are several other dissimilarities. As noticed above thecharacters printed on each of the discs are different. Discs are contained inside theproduct packets which are admittedly different. ( 30 ) THE word AMAZZO has three distinct syllables A+me+zo and TAZO has twosyllables TA+zo. As noticed above thecharacters printed on each of the discs are different. Discs are contained inside theproduct packets which are admittedly different. ( 30 ) THE word AMAZZO has three distinct syllables A+me+zo and TAZO has twosyllables TA+zo. Lip and the tongue formation of these two words is quite different. therefore,we find that there is no likelihood of confusion on account of these twowords and the class of people who would be normally purchasing the product inquestion. Lastly it was argued that the adaptation of the word AMAZZO and adoptionof the idea of promotional campaign subsequent to and their fall in the market sharein December, 1998 as revealed in the survey,amounted to dishonest and unfaircompetition. ( 31 ) FROM the pleadings and material it appears that the respondent (Uncle Chipps)was the first company in India to start manufacture and sale of potato chips in the year1987. They adopted several marketing innovations and marketing campaigns aswell as giving of free gifts along with the packets of potato chips since 1987. And nopassing off with regard to the goods sold or services provided in the course of tradeis even alleged, therefore, cannot be passing off with regard to something given freeand it cannot also amount to unfair competition. Furthermore,there cannot be passingoff in respect of a disc which is not visible to the customer when he goes to a shop topurchase a packet of Potato Chips, before the stage of alleged passing off isreached, the customer has to cross the barrier of the packet of Potato Chips whichadmittedly are absolutely different. Reference can be made to the law laid down inhospital World Trade Mark 1967 RPC 595 and Giddeons International 1991 RPC141. ( 32 ) LAW relating to similarity in trade-dress is now well settled. The Privy Council,incadbury-Schwepper Pty. Ltd. Vs. The Pub-Squash Co. Ltd. (1981) RPC 429upheld judgment of Powell j of the Supreme Court of New South Wales. In thatcase,the plaintiffs were selling lemon squash under the name sole in greenish-yellow cans with a medallion type label. The defendants launched a lemon squashcalled pub Squash and the lable was of a medallion type bearing the words "pubsquash" on it. The cans were of the same size and shape and colour as those ofplaintiff. The plaintiff brought the proceedings on the ground of passing off, unfair trade practice etc. The same was dismissed. The defendants launched a lemon squashcalled pub Squash and the lable was of a medallion type bearing the words "pubsquash" on it. The cans were of the same size and shape and colour as those ofplaintiff. The plaintiff brought the proceedings on the ground of passing off, unfair trade practice etc. The same was dismissed. It was held that the defendants hadsufficiently differentiated their product by their name On appeal to the Privy council,it was observed that over-emphasize on advertised description of a product mightindeed lead to stifling of competition. It was held:- "but competition must remain free, and competition is safeguarded by thenecessity for the plaintiff to prove that he has built up an intangible propertyright in the advertised description of his product, or, in other words,that hehas succeeded by such methods in giving his product a distinctive characteraccepted by the market. A defendant, however, does no wrong by entering amarket created by another and there competing with its creator, The line maybe difficult to draw; but, unless it is drawn, competition will be stifled. " ( 33 ) THEIR Lordships then applied the said test and observed that one has to seewhether the consuming public would be confused or misled by the get up, the formulaor the advertising of the respondent s product, into thinking, that it was the appellant sdissimilar product. On the facts, it was held that the public would not be so deceived. We are not persuaded to hold that the respondents are indulging in any unfaircompetition. ( 34 ) EVEN otherwise it is settled law that while hearing appeal against the discretionexercised by learned single Judge while deciding the application under Order 39rules 1 and 2 of the CPC, the appellate court is not expected to substitute its owndiscretion except where the discretion is shown to have been exercisedarbitrarily,capriciously or perversely or against the settled principles of law. In Wanderltd. and Another s. Antox India Private Ltd. , 1990 (Supp) SCC 727, it was heldthat an appeal against exercise of discretion is an appeal on principle. Appellatecourt will not re-assess the material and seek to reach a conclusion different from theone reached by the court below, if the one reached by that court was reasonablypossible view. In Wanderltd. and Another s. Antox India Private Ltd. , 1990 (Supp) SCC 727, it was heldthat an appeal against exercise of discretion is an appeal on principle. Appellatecourt will not re-assess the material and seek to reach a conclusion different from theone reached by the court below, if the one reached by that court was reasonablypossible view. The appellate court would normally not be justified in interfering withthe exercise of discretion under appeal solely on the ground that, if it had consideredthe matter at the trial stage,it would have come to a different conclusion. ( 35 ) THE whole question in these cases is whether the thing taken in its entirety issuch that in the ordinary course of things a person with reasonable apprehension andwith proper eyesight would be deceived. Admittedly, getup, tradename and tradedress of the two products to be sold are different, the packet of the plaintiff is beingsold in the name of lays and the product of the defendant is known as unclechipps . There is absolutely no similarity whatsoever in the packets of the chipsbeing sold by the appellant and the respondents. ( 36 ) AS noticed above on the basis of respondent s promotional campaign AMAZZOthe appellants have not been able to make out a case of either of piracy or of copyingtheir disc TAZO or attempting to pass off their product as that of the respondent or ofunfair competition. ( 37 ) HOWEVER, before we part with the judgment we would like to make it clear thatany observation made by us will not prejudice the trial. ( 38 ) FOR the foregoing reasons,we find no merit in the appeal and the same isdismissed no order as to costs.