JUDGMENT 1. The question arose in this application whether the respondent has infringed the right of the petitioner as a registered proprietor of the Trade Mark including the pictorial device which is used by the petitioner for its product. 2. The petitioner is manufacturer of synthetic adhesive sold under the well known brand 'Fevicol'. The petitioner was and is still marketing the said product in plastic jars, containers, tins and tubes, besides the said trade name 'Fevicol' contains, inter alia, a pictorial device of two elephants trying to separate a sealed globe by pulling at opposite ends unsuccessfully (hereinafter, referred to as the said pictorial device). The said pictorial device was and is prominently printed on the said body of the said plastic jars, containers, tins and tubes with a view that the public/consumer is able to identify the product of the petitioner by the said pictorial device. The petitioner marketed the said product throughout India including Calcutta. 3. The petitioner duly registered the said trade name' Fevicol' with the Registrar of Trade Marks, with effect from 2nd March, 1960. From time to time, the said registration has been renewed by the petitioner and the same is still valid upto 1st March, 2002. The pictorial device of the petitioner is also registered with the Registrar of Trade Mark with effect from 3rd October, 1979 and was renewed from time to time and is valid upto 2nd October, 2000. Simultaneously, the petitioner also registered the said word 'Fevicol' along with the said pictorial device with effect from 20th April, 1979 and is still valid upto 19th April, 2000. According to the petitioner, no one has any right to use the said word 'Fevicol', the said pictorial device which are deceptively similar to that of the petitioner. 4. By virtue of the advertisement caused by the petitioner, the said pictorial device has been prominently projected through a media and tele-media, has become and still is the distinctive features of the petitioner's product in the mind of the general public. 5. Respondent No.1 carries on business of adhesive in Nepal and exports adhesive to India through the respondent No.2, being its agent in India and the respondent No. 1 sells the same in various parts of India including Calcutta. 6. 5. Respondent No.1 carries on business of adhesive in Nepal and exports adhesive to India through the respondent No.2, being its agent in India and the respondent No. 1 sells the same in various parts of India including Calcutta. 6. The grievance of the petitioner that the respondents have recently started selling the synthetic adhesive in deceptively similar plastic jar printed with the word 'Rathicol' along with the pictorial device which is deceptively similar to that of the said pictorial device of the petitioner. According to the petitioner, the respondent No.1 also uses two quadruped large animals pulling a globe apart as that of the pictorial device of the petitioner. According to the petitioner, the said pictorial device of the respondent bears an overall similarity to the registered mark of the petitioner and is likely to confuse dealing with one to accept the other if offered to him. 7. The further contention is that the respondents are wrongfully imitated the said pictorial device which is deceptively similar to that of the petitioner. Further case has been made out in the petition that the respondents are using the said pictorial device of animals with the sole intention of pirating the goodwill and reputation of the petitioner in respect of its product 'Fevicol' and to pass-off the inferior goods as that of the petitioner. 8. It is also stated that petitioner has suffered loss and damages to the tune of Rs.19 lakhs. 9. The respondents denied the allegations made in the petition by the petitioner and stated that the respondent No.1 commenced its business of manufacturing and marketing adhesives in Nepal in the year 1994. 10. The Trade Mark 'Rathicol' has been registered under the laws of Nepal on July 12, 1992 in favour of M/s. Anna Purna Polychem Industries, a sister concern of the respondent No. 1, assigned in favour of the respondent No.1 by a deed of assignment. The said registration is valid and subsisting. 11. The case of the respondents that the respondent No.1, has duly made application for registration of the double Rhino device, the said pictorial device and the mark 'Rathicol' in India on May 3, 1999. 12. Respondent No. 1 also applied for registration of the said mark 'Rathicol' in India as well as applied for registration of double Rhino pictorial device in India. 12. Respondent No. 1 also applied for registration of the said mark 'Rathicol' in India as well as applied for registration of double Rhino pictorial device in India. According to the respondents, petitioner is identified by its Trade Mark 'Fevicol' and trade name 'Pidilite'. Therefore, the pictorial device of elephant cannot be the sole criteria for the identification of the product of the petitioner. It is also the case of the respondents that the device of the two Rhinos of the respondent No.1 is wholly dissimilar of the elephant device of the petitioner. The same is most prominent distinguishable features of the respondents product, and further, the containers used by the respondents are totally different and there cannot be any possibility of confusion and deception in the course of trade. 13. The products of the petitioner and the respondent No.1 are sold parallelly in Nepal for a number of years and not a single occasion of confusion or deception has been reported. It's further contended that the device is used by the respective device of the petitioner and the respondents are wholly dissimilar. 14. Mr. Chakraborty appearing on behalf of the petitioner submitted that the three marks of the petitioner has been registered and further relied upon a judgment reported in (1) AIR 1960 SC 142 , Corpn. Products Refining Co. v. Shangrila Food Products Ltd, and submitted that the question of similarity between the two marks as decided by the Hon'ble Supreme Court, it has to be approached from the point of view of a man of average intelligence and of imperfect recollection. To such a man, the overall structural and phonetic similarity and the similarity of the idea in the two marks is reasonably likely to cause a confusion between them. 15. According to Mr. Chakraborty, the test which has been laid down by the Hon'ble. Supreme Court to be followed in this case and further the petitioner's Trade Mark with the pictorial device had acquired a reputation within a buying public. 16. Mr. Chakraborty also relied upon another judgment reported in (2) AIR 1965 SC 980 , Kaviraj Pandit Durga Dutt Sharma v. Navaratna Pharmaceutical Laboratories, and submitted that where the two marks are identical no further question arises in respect of an infringement and it has to be taken as that the case of the infringement is made out. 16. Mr. Chakraborty also relied upon another judgment reported in (2) AIR 1965 SC 980 , Kaviraj Pandit Durga Dutt Sharma v. Navaratna Pharmaceutical Laboratories, and submitted that where the two marks are identical no further question arises in respect of an infringement and it has to be taken as that the case of the infringement is made out. When the two marks are not identical, the petitioner would have to establish that the mark used by the defendants so nearly resembles the petitioner's registered Trade Mark as is likely to deceive or cause confusion and in relation to goods in respect of which it is registered. 17. He further contended that the pictorial device used by the respondents is deceptively similar that of the petitioner. He further relied upon a judgment reported in (3) AIR 1972 SC 1359 , Parle Products (P) Ltd. v. J.P. & Co., Mysore, in support of his such contention. He further submitted that 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. It would be enough if the: impugned mark bears such an overall similarity to the registered mark as would be likely to mislead a person usually dealing with one to accept the other if offered to him. In the instant case, he contended that the whole idea of the petitioner has been imitated by the respondents. Therefore, according to him, in the instant case, the pictorial device is such that one can easily be mistaken for the others, and be further submitted that the petitioner should be injuncted from using such pictorial device. 18. He also relied upon a judgment reported in (4) 2000 (7) JT 151 , M/s. S.M. Dyechem Ltd. v. M/s. Cadbury (India) Ltd., and submitted that the Hon'ble Supreme Court has held that a mark is infringed if the essential features or essential particulars of it, are copied. According to him, the whole idea of the said pictorial device of the petitioner has been copied by the respondents to deceive public at large. According to him, the whole idea of the said pictorial device of the petitioner has been copied by the respondents to deceive public at large. He further submitted that there is a common elements in the pictorial device of the respondent that of the petitioner that on the two animals are pulling globe from the opposite end, according to him, which resembles with the idea of the petitioner which has been imitated by the defendants. Accordingly, he submitted that an injunction should be passed restraining the defendants to use the said pictorial device for their product. 19. Mr. Talukdar appearing on behalf of the respondents contended that there is no similarity of the pictorial device used by the respondent. He further drew my attention to the picture used by the respondent as well as by the plaintiff which are annexed to the petition. He further stated that instead of elephant they are using two Rhinos, instead of a globe they are using a separate device. It is not similar to that of the petitioner. According to him, there is no question of any confusion can be created in the minds of the public in respect of the said product. He further submitted that in S.M. Dyechem Ltd v. Cadbury (India) Ltd. reported in 2000 (7) JT 151 , the Hon'ble Supreme Court has held that even if it is found the phonetic similarities are there or the similarities used in the word 'PIKNIK' for the dissimilarity appeared to be clear to the general public and must striking to a naked eye than any similarity between the marks. In the instant case, according to him, the animals are different, the object is different and, therefore, the essential features are also different. According to him, there is no similarity of the pictorial device of the plaintiff with the defendants' pictorial device. Accordingly, he submitted that there is no question of any confusion and no order should be passed. 20. Therefore, it is the point to be decided that whether the defendants' pictorial device is 'deceptively similar' that of the petitioner. It appears from the containers used by the petitioner that the pictorial device appears along with the words 'Fevicol' and 'Pidilite' in all type of containers used by the petitioner. In each one of the containers, it is first appeared the word 'Pidilite'. It appears from the containers used by the petitioner that the pictorial device appears along with the words 'Fevicol' and 'Pidilite' in all type of containers used by the petitioner. In each one of the containers, it is first appeared the word 'Pidilite'. Thereafter, the pictorial device and then it appears as 'Fevicol'. It will be taken as a whole, whereas in the present case, the defendants' goods contained a word 'Rathicol'-"bond between promise and performance" and, thereafter, two Rhinos on the opposite direction pulling up the same object whereas the petitioner's container contains 'Pidilite'-the two elephants pulling up a globe on the different directions and, thereafter, the word' Fevicol'. It appears from the petitioner's containers that all the containers first contained the word 'Pidilite' and, thereafter, the pictorial device and the description. 21. The Hon'ble Supreme Court in the aforesaid judgment has dealt with the same. The Hon'bIe Supreme Court has observed in a case reported in (5) 1969 (2) SCC 131 , K.R. Chinna Krishna Chettiar v. Shri Ambal and Co., Madras & Anr, as follows :- "It is for the Court to decide the question on a comparison of the competing marks as a whole......The resembles between the two marks must be considered with reference to the ear as well as the eye." 22. The Hon'ble Supreme Court has observed in S.M. Dyechem Ltd. v. Cadbury (India) Ltd., as follows :- "...In our opinion, in the case of devices and composite marks, the above principle has not been strictly applied. The English Courts have laid emphasis more on dissimilarities in essential features rather than on similarity. The "whole-thing" principle is based on first impression as seen by the Court. We shall now refer to these principles laid down in the English cases." 23. It is also observed by the Hon'ble Supreme Court that : "When the question arises whether a mark applied forbears such resemblance to another mark as to be likely to deceive, it should be determined by considering what is the leading character of each. The one might contain many even most of the same elements as the other, and yet the leading, or it may be the only, impression left on the mind might be very different. The one might contain many even most of the same elements as the other, and yet the leading, or it may be the only, impression left on the mind might be very different. On the other hand, a critical comparison of the two marks might disclose numerous points of difference; and yet the idea which would remain with any person seeing them apart at different times might be the same. Thus, it is clear that a mark is infringed if the essential features, or essential particulars of it, are copied. In cases of device marks, especially, it is helpful before comparing the marks; to consider what are the essentials of the plaintiff's device. The Trade Mark .is the whole-thing-the whole picture on each has to be considered. There may be differences in the parts of each mark, but it is important to consider the mode in which the parts are put together and to Judge whether the dissimilarity of the part or parts is enough to make the whole dissimilar. It has been said that if the only resemblances between the two marks are in parts which are common, so that the owner of the one has taken nothing which is peculiar to the other, then there is at all events no infringement, at any rate unless the plaintiff had a distinctive arrangement of the common elements. But, this approach is hardly suited to a comparison of word marks; and even in relation to label marks or other features of get-up, it would be more appropriate to consider the case as a whole, with due regard to the background provided by any other marks shown to be in use. Therefore, the question is whether the defendant has; -so far as the common feature is concerned, -copied any distinctive arrangement of common elements? Or has copied any unusual feature of the common element. The marks names or get-up concerned must always be considered as the whole-thing, as the true test is whether the totality of the impression given both orally and visually is such that it is likely to cause mistake, deception or confusion." 24. The case of the petitioner that the buyer may be confused and/or deceived by use of such pictorial device. The case of the petitioner that the buyer may be confused and/or deceived by use of such pictorial device. Applying the facts of this case, I have to find out in the facts and circumstances of this case, I have no doubt in my mind to follow toe principle laid down by the Lord Romer and which has been approved by the Hon'ble Supreme Court in the recent judgment reported in 2000 (5) SCC 573 , S.M. Dyechem Ltd. v, Cadbury (India) Ltd. It would be proper for me to quote the said passage from the said judgment ; “54. As to scope of a buyer being deceived, in a passing-off action, the following principles have to be borne in mind, Lord Romer, L.J, has said in Payton & Co. v Snelling, Lampard & Co., that it is a misconception to refer to the confusion that can be created upon an ignorant customer. The kind of customer that the Courts ought to think of in these cases is the customer who knows the distinguishing characteristics of the plaintiff's goods, those characteristics which distinguish his goods from other goods in the market so far as relates to general characteristics. If he does not know that, he is not a customer whose views can properly be regarded by the Court. In "Schweppes case" Lord Halsbury said, if a person is so careless that he does not look and does not treat the label fairly but takes the bottle without sufficient consideration and without reading what is written very plainly indeed up the face of the label, you cannot say he is deceived." 25. After considering these facts as stated hereinabove, I do not have any hesitation at this stage to hold that there is no question of being confused or being deceived by the pictorial device used by the defendants as on presentation there are more dissimilarities than that of the similarities starting from using of the animals in respect of elephant, rhinos, instead of globe and different article and further containers used by the petitioner with the said pictorial device starts with the word 'Pidilite’ and whereas the 'Rathicol' used by the respondents with some different words which is as follows-"Bond between promise and performance". In my opinion, the dissimilarities are so, it cannot deceive any buyer dealing in the said articles. In my opinion, the dissimilarities are so, it cannot deceive any buyer dealing in the said articles. Accordingly, in my opinion, it would be proper for me at this stage not to grant any injunction save and except I direct the respondent to maintain a separate account in respect of the sale of its products and to furnish such accounts month by month to the petitioner until final disposal of the suit. For the reasons stated hereinabove this application is, thus, disposed of with the above directions.