Judgment :- The Order of the Court was as follows : The common question in the three applications is, whether the use of the mark RUBY by the respondents for their products violates the rights of the applicant ? O.A. No. 1176 of 2000 is in respect of passing off, O.A. No. 1177 of 2000 is in respect of infringement of trademark and O.A. No. 1178 of 2000 is in respect of infringement of the copy right. The applicant's case is that they are carrying on business as merchants and manufacturers of spirits and alcoholic preparations like Whisky, Brandy, Rum, Beer etc. The applicant's products reach their market under distinctive trademarks. Most of their trademarks and copyrights have been registered under the respective Acts and they have been continuously exercising their rights in respect of the same for a long time. The applicants have gained a reputation for their products. 'Consumers rely on the quality and taste of the products marketed by the applicants. In the early 1940's, the applicant adopted the trademark, RUBY PORT WINE and it has since been registered. They have applied for registration of the trademark RUBY XXX RUM. According to the applicants they are the exclusive owners of these trademarks and their trademark is written in distinctive style and advertised through the media. Their annual sales turnover was about a sum of Rs. 72.49 lakhs for the year 1999-2000. All on a sudden, the applicant came to know that the respondents were marketing their products under the name RUBY DELUXE BRANDY. The mark RUBY is the applicant's and the respondents have adopted it to make unlawful gains riding on the reputation and goodwill of the applicant. The trademarks RUBY PORT WINE and RUBY XXX RUM have become so well-known as the exclusive property of the applicant alone. If the respondent were to market other alcoholic preparations under the trademark RUBY it will dilute the applicant's trademark and they will lose control over the same and therefore, the suit was filed.Interim injunction was granted ex parte by this Court, on 19-12-2000. The respondent has filed counter. As per the averments in the counter the respondent-company was established in 1971 and the distillery license was granted in 1972. The respondent was manufacturing beer, whisky etc. in collaboration with Shaw Wallace & Company Limited. The respondent manufactures Whisky, Rum and Brandy under the trademarks DIAMOND and RUBY. The respondent has filed counter. As per the averments in the counter the respondent-company was established in 1971 and the distillery license was granted in 1972. The respondent was manufacturing beer, whisky etc. in collaboration with Shaw Wallace & Company Limited. The respondent manufactures Whisky, Rum and Brandy under the trademarks DIAMOND and RUBY. According to the respondent the suit is not maintainable since the applicant's registered trademark for PORT WINE is for TARRAGONA RUBY PORT WINE and therefore there is no registration of the trademark RUBY alone. There can be no passing off since the colour scheme, get-up are all distinct and different and the consumers are not likely to be confused. There can be no infringement of copyright since there is no copyright in the word RUBY and the applicant not having disclosed the name of the author, year, place of first publication etc. and without filing any artistic work cannot pray for an injunction of copyright. The application for registration of RUBY XXX RUM has been filed in the name of a person other than the applicant. The applicant cannot claim monopoly over the word RUBY in respect of all varieties of liquor. Therefore, the injunction has to be vacated. To this a reply was filed by the applicant stating that the port-wine marketed by the respondent is only RUBY PORT WINE and not TARRAGONA RUBY PORT WINE and therefore, the word RUBY is the essential feature. Since both the goods of the applicant and the respondent fall under the same description of liquor products the respondent cannot be heard to say that the applicant's trademark is confined only to wines and cannot restrict the respondent's right to sell Brandy under the same trademark. The difference in the price, colour-scheme, get-up referred to by the applicant is only an attempt to gloss over the main fact that the trademarks are identical. The fact that the applicant's product is not selling in Tamil Nadu is not relevant because the registration granted to the applicant has no territorial restriction. By an order of amalgamation the company, which applied for the trademark has merged with the applicant-company. So it is the applicant-company which is aggrieved by the acts of infringement of the respondent.The question to be decided is whether the applicant has made out a prima facie case ? and whether the applicant is entitled to interim injunction ? Mr. By an order of amalgamation the company, which applied for the trademark has merged with the applicant-company. So it is the applicant-company which is aggrieved by the acts of infringement of the respondent.The question to be decided is whether the applicant has made out a prima facie case ? and whether the applicant is entitled to interim injunction ? Mr. Satish Parasaran, learned counsel for the applicant submitted that this was a clear case of violation of the applicant's rights. He produced documents to show that there is an order of amalgamation by the High Court of Calcutta of the two companies namely, the applicant and Carew Phipson Limited and another certificate of the Registrar of Companies with regard to the change of name of Carew and Co. to Carew Phipson. This sets at rest the doubts raised by the respondent with regard to the rights of the applicant to urge infringement of a trademark belonging to Carew and Co. Since the label of RUBY XXX RUM reads that it is distilled, blended and bottled by Carew Co. & Ltd. The learned counsel reiterated the averments made in the plaint and affidavit in support of the Judges Summons. He then pointed out to G.O.Ms. No. 51, dated 11-2-2000, issued by the Prohibition and the Excise Department where permission was accorded to the respondent for introducing new brand of Indian made foreign spirit, in lieu of the brands already permitted. Amongst the medium brands LA FRANCE BRANDY marketed by the respondent was now substituted by RUBY DELUXE BRANDY and HIGH COMMAND WHISKY was now substituted by RUBY MALT WHISKY. The learned counsel submitted that there is no reason given for the sudden change in the name of the medium name whisky and Brandy sold by the respondent unless it is to cash in on the popularity of the reputation acquired by the applicant in the name RUBY for its products. The learned counsel also submitted that in the counter the respondent would say that the applicant's trademark is confined to wines while the respondent is manufacturing and selling Brandy under the trademark RUBY DELUXE BRANDY, which is completely different from wine. The learned counsel also submitted that in the counter the respondent would say that the applicant's trademark is confined to wines while the respondent is manufacturing and selling Brandy under the trademark RUBY DELUXE BRANDY, which is completely different from wine. But, they have introduced a seemingly innocuous sentence in the counter which reads as follows : "The respondent manufactures Whisky, Rum and Brandy under the trademark Ruby." without making it clear the specific user of the name with the particular product. He submitted that the sale of these products are made across the counter and by sales persons who are not very knowledgeable. The purchasers may also not look very particularly into the exact trademark while buying the product. In fact, the purchaser (sic) will be, as the learned counsel for the applicant put it "a moron in a hurry". He submitted that when the class of customers and the channel of distribution is the same then the applicant was entitled to injunction. He relied on the following decisions : (1) Kaviraj Pandit Durga Dutt Sharma v. Navaratna Pharmaceutical Laboratories, in which the Supreme Court held that in an action for infringement (at page 990) : "In an action for infringement, the plaintiff must, no doubt, make out that the use of the defendant's mark is likely to deceive, but where the similarity between the plaintiffs and the defendant's mark is so close either visually, phonetically or otherwise and the Court reaches the conclusion that there is an imitation, no further evidence is required to establish that the plaintiff's rights are violated." (2) P. Durai Swamy v. R. Subhaiyam, ( 1991 (1) PLR 2000), where the defendants plea that, the plaintiff's business was restricted to Madurai District where as the defendant was carrying on business in other areas was not accepted. (3) Turney & Sons' T.M.C. (11 RPC 37 ChD), where the Court held that whether Beer and Rum are or are not of the same description of the goods what is relevant is whether there was a probability of deception. (4) Australian Wine Importers' T.M. (6 RPC 311 C.A.), where the Court hold that although wine and whisky are in a great many ways considered as different goods, yet manufacturers describe them in the same description of goods since both are alcoholic preparations.(5) Corn Products Refining Co. (4) Australian Wine Importers' T.M. (6 RPC 311 C.A.), where the Court hold that although wine and whisky are in a great many ways considered as different goods, yet manufacturers describe them in the same description of goods since both are alcoholic preparations.(5) Corn Products Refining Co. v. Shangrila Food Products Ltd., where the Supreme Court held that a trademark may acquire reputation which it enjoys among the public by associating with a particular manufacturer and that the trademark may acquire a reputation though the buyer may not know about the manufacturer and that in deciding the question of similarity between the two marks one must approach it, from the view of a man of average intelligence and of imperfect recollection. (6) Tube Investments of India Ltd. v. Trade Industries, Rajasthan. In this case the Supreme Court granted injunction to a plaintiff who were the registered holders of the mark TI for bicycle parts in Class 12 against the defendants, who used a mark which was similar to the plaintiffs though only for saddle covers. The Supreme Court held that it was a fit case for grant of interim injunction. (7) K. R. Chinna Krishna Chettiar v. Sri Ambal & Co. This was the classic case of Ambal and Andal Snuff where the Supreme Court granted injunction rejecting the appellant's contention that there was no actual confusion by holding that ocular comparison is not always the decisive test. (8) Caesar Park Hotels and Resorts Inc. v. Westinn Hospitality Services Ltd. A decision of the Division Bench of our High Court where it was held that the plaintiffs could bank upon transborder reputation to maintain a passing off action and that prima facie case had been established. (9) M/s. Indian Shaving Products Ltd. v. Gift Pack, 2000 CLC 183, where the ingredients to be established in a passing off action was laid down. Mr. (9) M/s. Indian Shaving Products Ltd. v. Gift Pack, 2000 CLC 183, where the ingredients to be established in a passing off action was laid down. Mr. A. A. Mohan, learned counsel for the respondent, in reply submitted that Section 12(1) of the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as 'the Act'), prohibits registration of identical or deceptively similar in respect of the same goods or description of goods and Section 29 of the said Act states that a trademark is infringed when a person who is not a registered proprietor or user of the trademark uses in the course of the trade, a mark which is identical with or deceptively similar in relation to any goods in respect of which the trademark is registered. Therefore, the learned counsel would submit that there is no infringement if the respondent uses the trademark in relation to the goods in respect of which the trademark is not registered. In the instant case, according to the learned counsel, the trademark has been registered only for Wine and Rum and therefore, there can be no infringement of the trademark as far as the Whisky or Brandy, that the respondent markets under the trademark RUBY. The learned counsel also pointed out that the labels were different, there was no room for any deception or confusion between the two bottles and that the purpose for which Rum is used and for the purpose for which brandy is used are not similar. Therefore, the purchaser of Rum is not likely to purchase Brandy. There was no monopoly in the name RUBY which is an ordinary dictionary word. The learned counsel also submitted that there is no evidence to show that the applicant marketed his goods in Madras and therefore, there is no question of any violation of his rights. The class of customers of these products are not likely to mistake the product of the respondent to be the applicants and in any event the word SICAL which denotes the respondent is printed quite prominently on the label of the respondent's product. Therefore, any ordinary customer can immediately see that it is not a product marketed by the applicant. The class of customers of these products are not likely to mistake the product of the respondent to be the applicants and in any event the word SICAL which denotes the respondent is printed quite prominently on the label of the respondent's product. Therefore, any ordinary customer can immediately see that it is not a product marketed by the applicant. The learned counsel submitted that healthy competition cannot be stifled under the guise of infringement of these proprietary rights.The following decisions were relied on by the learned counsel for the respondent : (1) M/s. Surya Agro Oils Ltd. v. M/s. Surya Coconut Oil Industries, where the trademark that was impugned was SURYA and the learned Judge held that no injunction can be granted in respect of the word SURYA since no one can exclusively appropriate the word for himself. (2) John Walker & Sons Limited v. Rothmans International Limited and John Sinclair Limited, 1978 FSR 357, in which the plaintiff who had extensive reputation in the name of RED LABEL for whisky brought an action for passing off and applied for interim relief against the defendants who were about to launch a new of brand of cigarette under the same name RED LABEL and interim injunction was not granted. The Court held that there was only a risk of unquantifiable damage to the plaintiff but a certainty of unquantifiable damage to the defendant. Further there was no product confusion which warranted an interim injunction. (3) M/s. S.M. Dyechem Ltd. v. M/s. Cadbury (India) Ltd., (2000 CLC 1338). Here three tests were laid down in the matter of infringement of trademark namely, one, Special aspect of the common feature which has been copied, two, the mode in which the parts are put together differently, three, whether when there are common elements should one not pay more regard to the parts which are not common, while at the same time not disregarding the common parts. That was a case where the plaintiff who owned the trademark PIKNIK sought to restrain the defendant from using the word PICNIC. Injunction was not granted on the ground that there was no scope for a purchaser being misled in that case. (4) M/s. Vishnudas Trading as Vishnudas Kishandas v. Vazir Sultan Tobacco Co. Ltd., Hyderabad, where the respondent was a manufacturer of cigarettes who had obtained registration of trademark CHARMINAR in respect of 'manufactured tobacco'. Injunction was not granted on the ground that there was no scope for a purchaser being misled in that case. (4) M/s. Vishnudas Trading as Vishnudas Kishandas v. Vazir Sultan Tobacco Co. Ltd., Hyderabad, where the respondent was a manufacturer of cigarettes who had obtained registration of trademark CHARMINAR in respect of 'manufactured tobacco'. The appellant, before the Supreme court, was manufacturing quiwam and zarda had also been using the same trademark, CHARMINAR. The matter arose out of rectification proceedings before the Registrar. The Supreme Court held that in the common trade channel these articles are marketed separately and though all such products that come under the broad classification manufactured tobacco, each of the product is always held as a distinct and separate article of use.For all the aforesaid reasons, learned counsel for the respondent submitted that interim injunction should be vacated. Learned counsel also submitted that the respondent was a reputed Company, willing to maintain accounts, pending suit and therefore, the applicant cannot be said to be seriously prejudiced. I have heard the submissions made by both the counsel. As far as I.A. No. 1178 of 2000 is concerned, as rightly contended by the learned counsel for the respondent, the applicant has not made out a case for infringement of copyright. The manner and style of representation of the applicant's trademark which is claimed to be unique and artistic in content cannot be seriously urged to be violated by the respondent and therefore, the interim injunction granted in this Original Application stands dismissed. O.A. Nos. 1176 of 2000 and 1177 of 2000 relates to passing off and infringement to trademark respectively. It is not disputed that the applicants are carrying on business of marketing Whisky, Brandy, Rum, Beer and other alcoholic preparation. It is also not disputed that they are one of the leading companies which trade in these products. In fact, the counsel for both sides admitted that the applicant and the respondent have been competitors and rivals in trade. The applicant have obtained registration for wine under the trademark RUBY PORT WINE under Class 33 of the Act, 1958 in the year 1952. The applicant has also been using the trademark RUBY XXX RUM since 1973 and is awaiting registration in respect of its application which is dated 22-12-1988. The applicant have obtained registration for wine under the trademark RUBY PORT WINE under Class 33 of the Act, 1958 in the year 1952. The applicant has also been using the trademark RUBY XXX RUM since 1973 and is awaiting registration in respect of its application which is dated 22-12-1988. Class 33 of the IV Schedule of the Trade and Merchandise Marks Rules brings within its compass the following goods, wines, spirits, liqueurs. Therefore, both the applicants and the respondent's goods will come under the same Class. According to the applicant if the respondent is allowed to adopt the applicant's well-known trademark RUBY for their inferior quality product then it would result in dissipation of the applicant's right. Further the respondents would be allowed, to deceive the public into believing that the product marketed by the respondent is associated with the applicant's product. Section 2(1)(d) of the Act defines the words 'deceptively similar' to be, "a mark shall be deemed to be deceptively similar to another mark if it so nearly resembles that other mark as to be likely to deceive or cause confusion". Section 29(1) lays down that if there is identity in the trademark or deceptive similarity in the trademark by the person who is not the registered proprietor or registered user then there is infringement of trademark. It is true that the language of Section 12 and Section 29 of the Act are different. Therefore, the exclusive right which is conferred on a registered proprietor or registered user is limited to the goods for which the mark is registered and cannot be extended to allied goods. In Dr. S. Venkateswaran in the Law of Trade Marks and Passing Off in page 511 it is stated as follows : "in order to constitute infringement, the defendant use of the mark complained of must be in relation to any goods in respect of the plaintiff's mark is registered. An action for infringement cannot, therefore, be brought when the use complained of is in respect of goods for which the plaintiff's mark is not registered even though an action for passing off may still be sustained. A defendant cannot contend that the plaintiffs mark is not used in respect of the goods in question although, it is registered for those goods. A defendant cannot contend that the plaintiffs mark is not used in respect of the goods in question although, it is registered for those goods. In such case the proper course for the defendant is to apply for rectification of the Registrar by limiting the registration to the goods for which mark is used or for removing the mark from the Registrar under Section 46 of the Act." In this case, both the applicant's and the respondent's product come under Class 33. Of course, the applicant, the user of the name RUBY, only in respect of the XXX RUM, whereas the respondent is using the trademark RUBY for it's Brandy and Whisky. Can the applicant who is using the trademark for one particular product seek injunction in respect of allied goods ? The decision reported in Vishnudas Trading as Vishnudas Kishandas v. Vazir Sultan Tobacco Co. Ltd. Hyderabad, known as the CHARMINAR case arose under similar circumstances. The registered user of the trademark CHARMINAR had acquired his right in respect of the mark for cigarettes falling under Class 34 of the IV Schedule. The appellant before the Supreme Court was using the same trademark for different goods but it came under the same Class. Therefore, the appellant sought for rectification of registration of the trademark on the ground the respondent-company had not used the trademark for quiwam or zarda. On facts the respondent-company could neither refuse or refute the allegation that they had never manufactured any other article of tobacco except cigarette. Therefore, the Assistant Registrar directed the rectification to be read as 'cigarettes'. The Supreme Court also accepted the argument that when a trader or manufacturer actually trades or manufactures only one article with no bona fide intention to trade any other goods or articles belonging to the same genus. Such a trader or manufacturer cannot by merely obtaining a trademark for its product in respect of the class in which it falls, which in that case was 'manufactured tobacco' prevents the public at large and the traders, in particular, from obtaining any trademark in respect of their products merely because they come under a wide umbrella or genus, although, those goods might be essentially different in description and in the mode of consumption. The argument that 'manufactured tobacco' could be consumed by smoking or by ingesting, chewing or by inhalation was accepted. The argument that 'manufactured tobacco' could be consumed by smoking or by ingesting, chewing or by inhalation was accepted. In those circumstances, the Supreme Court held that a trader or manufacturer as described should not be permitted to enjoy monopoly in respect of all the articles with no bona fide intention of the user of the trademark in respect of any other article, but one, and held that (at page 2288 of AIR) : "In our view if rectification in such circumstances is not allowed, the trader or manufacturer by virtue of earlier registration will be permitted to enjoy the mischief of trafficking in trademark." This decision, I am afraid will not come to the aid of the respondent, since the respondent's products are not so widely dissimilar from the applicant's, as zarda is from cigarette. Further, admittedly the applicant manufactures the same product, namely, Brandy and Whisky in respect of which the respondent is now using the impugned trademark. The respondent cannot be heard to say that the applicant who has been using he trademark RUBY for certain goods falling in Class 33 will not extend the user to such other goods. If the respondent wants to register the trademark RUBY for goods falling under the same class and then the proper course for the respondent may be to apply for rectification, as the applicant in the CHARMINAR case did. As regards the CADBURY PICNIC case, reported in M/s. S.M. Dyechem Ltd. v. M/s. Cadbury (India) Ltd., (2000 CLC 1338). Injunction was not granted because the Supreme Court examined the two labels and found that when compared to the peculiar aspects of the common features, there were other features which accented the dissimilarity and the dissimilarity had to be given more importance than the phonetic similarity. The learned counsel for the respondent would submit in this context that the dissimilarity in the applicant's label and the respondent's label are also so striking, so the phonetic similarity should not be given any weight. But, the Supreme Court in the same case having dealt at length with the broad principles applicable to infringement action and in particular to deceptive labels and composite marks, identified two factors which disentitled the plaintiff from getting injunction. But, the Supreme Court in the same case having dealt at length with the broad principles applicable to infringement action and in particular to deceptive labels and composite marks, identified two factors which disentitled the plaintiff from getting injunction. One, the special script of the words, caricature of the boy with the hat and the curve in which those words were inscribed were all essential features of the plaintiff's trademark, whereas the defendant in that case use the words PICNIC in a straight line script that was normal and two, the words CADBURY were written above the words PICNIC. Therefore, the striking features of the plaintiff's label and the presence of the word CADBURY persuaded the Supreme Court to hold that there was no infringement. Further, the products were also dissimilar and the Supreme Court held that there was no scope for a purchaser being misled. In the same case the Supreme Court had held as follows (at page 1353 of CLC) : "What is the first impression ? Further, if in a given case, the essential features have been copied, the intention to deceive or to casue confusion is not relevant in an infringement action. Even if, without an intention to deceive, a false representation is made, it can be sufficient. Similarly, confusion may be created unintentionally but yet the purchaser of goods may get confused for he does not have the knowledge of facts which can enable him not to get confused." In the John Walkar RED LABEL case, which was relied upon by the learned counsel for the respondent, where the Rothman group which was an established maker of cigarette wanted to bring a new brand. After considering several new names finally, they adopted the mark RED LABEL. In the action against Rothmans group, balance of convenience was held to be in their favour. The Court felt that the effect of the injunction will be that the defendants will have to stop marketing, RED LABEL cigarettes in their existing packs by either dropping the proposed product until the proceedings were concluded or continuing the product under a different name. In conclusion, the learned Judge of the Chancery Division was of the opinion that the defendant's probable loss cannot be adequately measured by any monetary award in the event of their success at the trial. Does this apply to the instant case ? In conclusion, the learned Judge of the Chancery Division was of the opinion that the defendant's probable loss cannot be adequately measured by any monetary award in the event of their success at the trial. Does this apply to the instant case ? One relevant document that was pointed out by the learned counsel for the applicant is the order dated 18-2-2000 filed by the respondent themselves. It was evident that the same medium brand Brandy and Whisky had been marketed by the respondent under the name LA FRANCE and HIGH COMMAND respectively, until September, 2000. There is another document which is the proceedings of the Commissioner and Excise dated 27-6-2000 where reference is made to the request of the respondent to introduce the following brands of IMFS products which include RUBY MALT WHISKY and RUBY DELUXE BRANDY. So even on 27-6-2000 they were at the stage of requesting permission to introduce these two brands, they were marketing medium brand Whisky and Brandy under the former labels. This was not a new product introduced by the respondent for the first time as in the John Walker case where the cigarette manufacturer namely the Rothmans group was manufacturing only middle tar group and decided to market a new category belonging to low/middle tar range which would be of a smaller size. It was in those circumstances, the Chancery Division held that any injunction would result in either discontinuance of the product altogether or continuance of the product but under the same name. So the scales of the balance of convenience tipped in favour of the respondent. That situation does not exist in this case. The respondent had been manufacturing the same brands but under different names. For reasons best known to them all on a sudden in mid 2000, the respondent decided to adopt the trademark RUBY. No reason is given as to why this trademark was adopted. Their earlier trademarks have no connection to the name RUBY for the Court to draw the conclusion, that the new name was a natural corollary of the existing trade names. Therefore, if injunction is granted in favour of the applicant the respondent will not have to stop marketing their product. On the other hand they will continue to market those brands under the old names which they had been marketing until September 2000. Therefore, if injunction is granted in favour of the applicant the respondent will not have to stop marketing their product. On the other hand they will continue to market those brands under the old names which they had been marketing until September 2000. Therefore, the balance of convenience that obtained in favour of the respondent in the John Walker case does not exist in this case.As regards, the case that arose before the Delhi High Court in M/s. Surya Agro-Oils Ltd. v. M/s. Surya Coconut Oil Industries, which is a short judgment in which both parties sought injunction against the other and there appear to have been two suits and the learned Judge held that neither all the parties are entitled to injunction and has compared the two trademarks side by side and come to the conclusion that no reasonable comparison can be confused. We are unable to ascertain as to the length of user of the trademark by the respective parties and other such relevant factors which must have weighed in the mind of the learned Judge, while refusing the injunction. The submission of the learned counsel for the applicant to show that though the applicant has not yet commenced marketing his goods in Tamil Nadu, he would still be entitled to restrain the respondent finds support of the decisions reported in P. Durai Swamy v. R. Subhaiyam, 1991 (1) PLR 11, where this Court held that defendants plea that the plaintiff's right was restricted to Madurai District cannot be accepted because there was no restrictions as regards the right of the applicant and the defendant was not entitled to use it anywhere. As regards the question that since Brandy and Rum are different the applicant cannot restrain the respondent from using the trademark RUBY, the learned counsel for the applicant drew support from the John Walker & Sons case and the Australian Wine Importers' Case. The Australian Wine Importers' case, is squarely on the point. That was a case where the GOLDEN FLEECE trade mark was sought to be infringed. There the learned Judges discuss in detail, the effect of goods of the same description and they issue the warning that too much stress should not be laid on the classification of the goods. The Australian Wine Importers' case, is squarely on the point. That was a case where the GOLDEN FLEECE trade mark was sought to be infringed. There the learned Judges discuss in detail, the effect of goods of the same description and they issue the warning that too much stress should not be laid on the classification of the goods. They referred to classes 26 and 29 where one finds flax, hemp and jute which are all fibrous and then to Class 22 where bicycles and railway carriages are classified together. The learned Judge asks, if there can be any goods more different from bicycles and bath chairs ? Therefore, they held in that case that one cannot be guided by their classification some goods or description of goods. But, while coming to wines and spirits they hold that,They are alcoholic and spirituous. They are sold in this country constantly by the same people. Wine and spirits dealers are common enough in this country, and I am not sure that they are not the same description of goods; but whether they are or are not, it seems to me that they are so uncommonly near the line that we ought not to depart from the view taken by Mr. Justice Kay, and say to the Comptroller, "You must not register in favour of these wine merchants a mark which is already on the Register in favour of a spirit merchant who is also a wine merchant." In the present case, the respondent appears to say that he is a Brandy and Whisky merchant and he is entitled to market his wares under a mark which is used for Rum by his rival, who, however, also markets brandy and whisky though under different name. The decision in Australian Wine Importers case was followed in a similar case in respect of similar products where an application was made by a person to register a trademark for Rum. It was opposed by BR & Co. on the ground they used the similar trademark for beer. According to them people would be confused into believing that the applicant's Rum emanated or was in some way connected to the Beer manufacturer. It was opposed by BR & Co. on the ground they used the similar trademark for beer. According to them people would be confused into believing that the applicant's Rum emanated or was in some way connected to the Beer manufacturer. The application for registration was refused following the Australian Wine Manufacturers' case on the ground that whether bear and Rum are or are not of the same description of goods and even if they are not there was such a probability of deception that this Court ought not to say that the mark must be registered. One relevant point that was taken note of by the learned Judge in that case is equally relevant to this case, which was that there was, "No explanation for adopting this new mark when the applicant's had already other marks" and it was said to constitute suspicious circumstances.In the instant case, there is no explanation given by the respondent as to why all of a sudden he attempted to substitute the trademark RUBY for the existent trademark. In the respondent's counter it is stated that the respondent has been manufacturing RUBY DELUXE BRANDY since the year September 2000. The respondent has not stated in its counter that the trademark RUBY DELUXE was in substitution of an existing trademark. The respondent has also stated that they are not manufacturing Whisky or Wine or Rum whereas in their own documents it is seen that the respondents were manufacturing one mutiny XXX Rum which is now sought to be substituted by DIAMOND XXX RUM. Therefore, it may not be correct for the respondent to state that they are not manufacturing and selling Rum. The grievance of the applicant is that there is bound to be confusion or deception because of the respondent's use of the mark RUBY. No doubt the learned counsel for the respondent stated that connoisseurs of alcoholic drinks will never mistake Brandy for Rum and therefore, there was no question of deception or confusion. The applicant's goods and the respondent's goods are likely to be sold from the same counter and the customers are also and the class of consumers overlap each other. It is not enough to say that one is a post-dinner drink and the other is pre-dinner drink and that one is used in Christmas puddings and the other is not. The applicant's goods and the respondent's goods are likely to be sold from the same counter and the customers are also and the class of consumers overlap each other. It is not enough to say that one is a post-dinner drink and the other is pre-dinner drink and that one is used in Christmas puddings and the other is not. The persons who drink Rum in our country or Brandy, for that matter may perhaps not know that one is used in Christmas cakes. The learned counsel is referring to customers of western origin or persons who have a strong occidental influence. I am sure the consumers of the applicant's or the respondent's product in our country do not fall under this category. The learned counsel also submitted that a person who buys Brandy normally will not buy Rum. Therefore, 'there is no question of deception or confusion'.The same arguments were advanced in the Ellora Industries case, which is referred later and as the learned Judge held in that case, here too, the use of the same name suggests a warm intimacy with one another. In a case reported in Chelsea Man Menswear Ltd. v. Chelsea Girl Ltd., 1987 RPC 189 CA, the learned Judges stated that, "the days are long past when judges would, for lack of evidence, shut their eyes to the realities of every day life." Let us suppose a case of 'A' entertaining his guest. 'A' normally prefers Rum and his guest prefers Brandy and 'A' who normally chooses the applicant's product asks for RUBY XXX RUM and then asks for a bottle of Brandy. The sales person may very well say that there is RUBY BRANDY available, and 'A' who is satisfied with the quality and taste offered by the applicant is very likely to be deceived into thinking that RUBY BRANDY comes from the same stable. The fact that SICAL which is the respondent's name is printed on the label of the RUBY Brandy bottle is neither here nor there. As the learned counsel for the applicants said that the buyer in a hurry is not likely to look at that. The fact that SICAL which is the respondent's name is printed on the label of the RUBY Brandy bottle is neither here nor there. As the learned counsel for the applicants said that the buyer in a hurry is not likely to look at that. 'A' is every likely to say 'I have got RUBY RUM, now I will give 'B' a bottle of RUBY BRANDY.' The niceties of usage and consumption of different kinds of spirits and alcoholic preparations, which the learned counsel for the respondent alluded to, most certainly will not arise for consideration in the mind of this customer. Tavener Rutledge v. Specters Ltd., 1959 RPC 83, the learned Judge observed, "Nor again do I think, it is an answer to say that anybody who knows the name will know that the plaintiffs name is different from that of the defendant." In this case, it is worse for the applicant, since the name is the same. A regular customer of RUBY XXX RUM when buying RUBY BRANDY is not going to verify the source of origin he is more likely to think they share a common parentage. Therefore, the possibility of the public being misled into thinking that RUBY BRANDY and RUBY XXX RUM share a common source of origin cannot be ruled out. The differences in the label design is also not relevant. The customer is likely to think that because they are two different alcoholic preparations, the colour is different. Therefore, the case put forth by the applicant that there is likelihood of confusion cannot be ruled out.In case decided by the Delhi High Court reported in Ellora Industries, Delhi v. Banarasi Dass Goela, the learned Judge very eloquently deals with the question of why injunction should be granted in respect of passing off thus (at page 256) : "The purpose of this tort is to protect commercial goodwill; to ensure that people's business reputations are not exploited." and the question why injunction should be granted with regard to trademark, thus, The plaintiff must establish that his business or goods have acquired the reputation he alleges; that for example, "a particular name has become distinctive of his goods and that a reputation has attached to them under the name in question". The learned Judge in that case held that there is a real and tangible risk of damage, the field of activity being common and that the use of the impugned trademark is an infringing designation. The following extract from International News Service v. Associated Press, 1918 (248) US 215, "Sometimes, the falsehood is a little more subtle, the injury a little more indirect" I think the Ellora case and the Australian Wine Importers' case settle the question in this case. The applicant's registration for application is dated 1988 and it shows user from 1973 in respect of the trademark RUBY XXX RUM. The product comes under class 33 which covers wines, spirits and liquors. It is no doubt true and also admitted by the applicant's counsel that till date the applicant has not marketed their products in Tamil Nadu. But the fact that the applicant has been using the trademark RUBY in connection with an alcoholic drink for the last two decades would entitle him to get an injunction. As held by this Court in the Muruga Vilas case, the fact that the plaintiff's operations were restricted to Madurai District was not allowed to be urged by the defendant for rejection of the injunction application. In the Ellora Industries case, the two names were phonetically identical but the spelling was different.In this case, the trademark RUBY is identical. As pointed earlier no acceptable reason has been given for the sudden substitution of the name RUBY for the existing names. The counter no doubt says that extensive market survey and research was done, to ascertain whether any Brandy was marketed under the name of RUBY. It is admitted by both the counsel that the applicant and the respondent are competitors going for each others' throats in the market place. The respondent cannot claim ignorance of the fact that the applicant has been marketing RUBY XXX RUM for several years now. The conclusion that seems irresistible, for the adoption of this name all on a sudden in September 2000, is that the respondent wanted to hitch a ride on the reputation of the applicant. The question of balance of convenience and irreparable injury are also only in favour of the applicant. The conclusion that seems irresistible, for the adoption of this name all on a sudden in September 2000, is that the respondent wanted to hitch a ride on the reputation of the applicant. The question of balance of convenience and irreparable injury are also only in favour of the applicant. Since the respondent had been marketing the same products all over Tamil Nadu prior to 2000 and in 1983, they appear to have got the license for manufacturing Brandy, Whisky, Rum and Gin. Therefore, if they have to revert back to the names under which they have been marketing all these years they are not going to suffer. But if they should contend that it is only after they substituted the name of RUBY instead of the existing trademark that their sales improved, that would only reinforce the complaint of the applicant that the respondent is trying to cash in on their reputation. I have already dealt in detail as to why the consideration that prevailed upon the learned Judges who decided the RED LABEL to hold that balance of convenience in favour of the defendant is not applicable to these goods. Hence, the interim injunction already granted in these two applications is made absolute. In the result, the interim injunction already granted in O.A. No. 1178 of 2000 is vacated and the interim injunction granted in O.A. Nos. 1176 and 1177 of 2000 is made absolute.