V. K. AGRAWAL, J. ( 1 ) THIS appeal is directed against the order D/- 9-5-2001 in Civil Suit No. 6-A/2001 by First Additional District Judge, Bhopal, allowing the plaintiffs/respondents' application under O. 39, Rr. 1 and 2 of C. P. C. for temporary injunction, restraining the defendants/appellants from using design of label marked as Ex. P-1/b by the trial Court or any other label of similar design, to the trade mark got registered by the plaintiffs under registration No. 469805. ( 2 ) IT is not in dispute that, initially the appellant No. 1 as well as respondents and their predecessors were partners of the firm known as "m/s. Kale Khan Mohd. Haneef", which carried on the business of manufacture and sale of 'bidis'. Subsequently, appellant No. 1 was removed from the said partnership and started his own business of manufacturing and selling of 'bidis'. Presently the respondents Nos. 2 to 11 are the partners of respondent No. 12 firm "m/s. Kale Khan Mohd. Haneef". It is also not in dispute that the plaintiffs/respondents have got registered trade mark placed on record of this appeal as label Annexure O-1, under registration No. 469805, as ordered by Registrar of Trade Marks, Bombay. The defendants/appellants have filed an appeal before the Bombay High Court, against the aforesaid order of the Registrar. The said appeal is pending. Another trade mark was also got registered in the name of said partnership "kale Khan Mohd. Haneef" under registration No. 199399. It appears that some other trade marks were also got registered by the original firm. Parties are involved in litigations involving their right to use the said trade marks. ( 3 ) THE plaintiffs/respondents brought the present suit complaining infringement of their registered trade mark Annexure O?1, registered under registration No. 469805. The aforesaid complaint was on account of user by defendants/appellants of trade mark, which was marked by the trial Court as label Ex. P-1/b and placed in the record of this appeal as label Annexure O-5. ( 4 ) THE learned trial Court after considering the similarities between the two labels i. e. Annexure O-1 and Annexure O-5 observed that, a common man using the commodity - 'bidis' is likely to be misled by label Annexure O-5, which is deceptively similar to label Annexure O-1, the registered trade mark of plaintiffs/respondents. ( 4 ) THE learned trial Court after considering the similarities between the two labels i. e. Annexure O-1 and Annexure O-5 observed that, a common man using the commodity - 'bidis' is likely to be misled by label Annexure O-5, which is deceptively similar to label Annexure O-1, the registered trade mark of plaintiffs/respondents. Accordingly, the prayer of plaintiffs/respondents for grant of temporary injunction, was allowed and the defendants/appellants were restrained from using the trade mark label Annexure O-5 (marked as Ex. P-1/b by the trial Court ). ( 5 ) LEARNED counsel for appellants submitted that the dis-similarities between the two labels i. e. , Annexure O-1 and Annexure O-5 have not been noticed by the trial Court while passing the impugned order. It has been submitted that the appellants did not infringe the registered trade mark as there are various dis-similarities between the two labels. It has therefore been submitted that there was no justification for granting temporary injunction in favour of plaintiffs/respondents. ( 6 ) IT may be noticed that S. 28 (1) of the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as 'act' for short) provides that, the registration of a trade mark gives the registered proprietor of the trade mark the exclusive right to the use of the trade mark in relation to the goods in respect of which the trade mark is registered and to obtain relief in respect of infringement of the trade mark in the manner provided by the Act. ( 7 ) SECTION 29 of the Act lays down as to what amounts to infringement of trade mark and the remedy available to the registered owner on infringement. It reads :- infringement of trade marks- (1) A registered trade mark is infringed by a person who, not being the registered proprietor of the trade mark or a registered user thereof using by way of permitted use, uses in the course of trade a mark which is identical with, or deceptively similar to, the trade mark, in relation to any goods in respect of which the trade mark is registered and in such manner as to render the use of the mark likely to be taken as being used as a trade mark. (2) In an action for infringement of a trade mark registered in Part B of the register an injunction or other relief shall not be granted to the plaintiff if the defendant establishes to the satisfaction of the Court that the use of the mark of which the plaintiff complains is not likely to deceive or cause confusion or to be taken as indicating a connection in the course of trade between the goods in respect of which the trade mark is registered and some person having the right, either as registered proprietor or as registered user, to use the trade mark. " ( 8 ) IT has therefore to be considered as to whether the defendant has established that its label Annexure O-5 is not likely to deceive or cause confusion vis-a-vis the registered trade mark Annexure O-1 of the plaintiffs/respondents ? ( 9 ) IT may be reiterated here that label Annexur O-1 has been got registered by plaintiffs/respondents with the Registrar of Trade Marks, Bombay under registration No. 469805. They have alleged that by using the label Annexure O-5, which is marked as Ex. P-1/b by the trial Court, the appellants are infringing their registered trade mark. The learned trial Court, in the impugned order has observed that the user as above by appellants of label Ex. P-1/b prima facie amounts to infringement of registered trade mark of plaintiffs/respondents. ( 10 ) LEARNED counsel for appellants submitted that, when the two labels Annexure O-1 and Annexure O-5 are compared with each other various dis-similarities between the two are noticed. It has therefore been submitted that the user of label Annexure O-5 does not amount to infringement of registered trade mark of respondents, as per label Annexure O-1. ( 11 ) IT is clear that, in the cases of complaint of infringement of a registered trade mark, the proper approach is not to keep the two marks side by side and to find out dis-similarities between the two. The true criteria appears to be whether a person with average intelligence, who is likely to use the commodity would be misled in purchasing one commodity, while he is handed over the other one. If the defendant's mark is likely to deceive the purchasers of the commodity, the defendant would be guilty of having committed infringement. The true criteria appears to be whether a person with average intelligence, who is likely to use the commodity would be misled in purchasing one commodity, while he is handed over the other one. If the defendant's mark is likely to deceive the purchasers of the commodity, the defendant would be guilty of having committed infringement. The comparison of the plaintiffs' registered trade mark with that of the defendant against which the complaint of infringement is made by the plaintiffs; has to be done with an object to determine whether there are common essential features in the two marks. ( 12 ) IN Kaviraj Pandit Durga Dutt Sharma v. Navaratna Pharmaceutical Laboratories ( AIR 1965 SC 980 ) the distinction between an action for passing off and infringement of registered trade mark and the essential features of the two were explained. It was observed therein that (Para 28) : an action for passing off is a Common Law remedy being in substance an action for deceit, that is, a passing off by a person of his own goods as those of another. But that is not the gist of an action for infringement. The action for infringement is a statutory remedy conferred on the registered proprietor of a registered trade mark for the vindication of "the exclusive right to the use of the trade mark in relation to those goods". The use by the defendant of the trade mark of the plaintiff is not essential in an action for passing off, but is the sine qua non in the case of an action for infringement. No doubt, where the evidence in respect of passing off consists merely of the colourable use of a registered trade mark, the essential features of both the actions might coincide in the sense that what would be a colourable imitation of a trade mark in a passing off action would also be such in an action for infringement of the same trade mark. But there the correspondence between the two ceases. But there the correspondence between the two ceases. 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 plaintiff's 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. Expressed in another way, if the essential features of the trade mark of the plaintiff have been adopted by the defendant, the fact that the get up, packing and other writing or marks on the goods or on the packets in which he offers his goods for sale show marked differences, or indicate clearly a trade origin different from that of the registeredproprietor of the mark would be immaterial; whereas in the case of passing off, the defendant may escape liability if he can show that the added matter is sufficient to distinguish his goods from those of the plaintiff. " it was further observed in the said case that, when once the use by the defendant of the mark which is claimed to infringe the plaintiff's mark is shown to be "in the course of trade", the question whether there has been an infringement is to be decided by comparison of the marks. Where the two marks are indentical no further questions arise; for then the infringement is made out. When the two marks are not indentical, the plaintiff would have to establish that the mark used by the defendant so nearly resembles the plaintiff's registered trade mark as is likely to deceive or cause confusion in relation to goods in respect of which it is registered. It was also observed that the persons who would be deceived are, of course, the purchasers of the goods and it is the likelihood of their being deceived that is the subject of consideration. Resemblance may be phonetic, visual or in the basic idea represented by the plaintiff's mark. The purpose of the comparison is for determining whether the essential features of the plaintiff's trade mark are to be found in that used by the defendant. The identification of the essential features of the mark is in essence a question of fact and depends on the judgment of the court based on the evidence led before it. The purpose of the comparison is for determining whether the essential features of the plaintiff's trade mark are to be found in that used by the defendant. The identification of the essential features of the mark is in essence a question of fact and depends on the judgment of the court based on the evidence led before it. ( 13 ) IN the instant case, it is clear that in both the labels i. e. Annexure O-1 and Annexure O-5 the fountain or "phawara" constitutes the main feature. The designs surrounding the fountain are also similar. Both the labels are almost of equal size and the designs of both appear to be deceptively similar. Under both the labels the 'bidis' are sold under the caption "phawara Chap" bidis. The similarities as above appear to be deceptive, as has been held by the learned trial Court. ( 14 ) IT is common knowledge that 'bidis' are being used by persons belonging to poorer and illiterate or semi-literate class. Their level of awareness is not high. It cannot be expected of them that they would comprehend and understand the fine differences between the two labels, which may be detected on comparing the two labels when placed side by side. The essential features of the two lables are common. In view of above, there appears to be deceptive similarity between the two labels. ( 15 ) IN Cadila Health Care Ltd, v. Cadila Pharmaceuticals Ltd. , (2001) 5 SCC 73 observation in case of Kaviraj Pandit Durga Dutt Sharma (supra) were quoted with approval. It was held that the question of deceptive similarity has to be approached from the point of view of a man of averge intelligence and imperfect recollection. It has to be seen that the overall structure and phonetic similarity of two labels are likely to deceive or cause confusion. Reference in the above connection may also be made to Parle Products (P) Ltd. v. J. P. and Co. Mysore AIR 1972 SC 1359 and Ruston and Hornby Ltd. v. Zamindara Engineering Co. AIR 1970 SC 1649 . ( 16 ) AS noticed above, in the instant case also, on comparison of two labels Annexure O-1 and Annexure O-5, deceptive similarity is apparent and confusion and deception is likely to be caused to an unwary customer of an average intelligence and imperfect recollection. AIR 1970 SC 1649 . ( 16 ) AS noticed above, in the instant case also, on comparison of two labels Annexure O-1 and Annexure O-5, deceptive similarity is apparent and confusion and deception is likely to be caused to an unwary customer of an average intelligence and imperfect recollection. Therefore, prima facie it appears that the complaint raised by plaintiffs/respondents that their registered trade mark, as per Annexure O-1 was being infringed by the defendants/appellants by usage of label Annexure O-5 appears to be justified. ( 17 ) IT is clear that the plaintiffs/ respondents are the registered owners of trade mark, as per label Annexure O-1 In the circumstances, the deceptively similar trade mark as per label Annexure O-5 (marked by trial court as Ex. P-1/b) could not be permitted to be used by them, as has been mandated under Section 28 of the Act. The trial Court was therefore justified in allowing the petition under Order 39 Rules 1 and 2 of C. P. C of plaintiffs/ respondents and in restraining the defendants/ appellants from using labels and wrappers, as per Annexureo-5 (Ex. P?1/b) or any other label similar to the registered trade mark, as per label Annexure O-1. ( 18 ) THEREFORE, no interference in the impugned order is called for. This appeal has no merit and is accordingly dismissed. Consequently,m. (C ). P. No. 1785/2001 also stands finally disposed of. Appeal dismissed. .