SANJAY KISHAN KAUL, J. ( 1 ) THE colours of a rainbow are striking and universal. A combination of colours creates its own kaleidoscope. A colour is not the property of any individual, but colour combinations used in a particular pattern may create identification with a product. ( 2 ) WHAT s in a name? That which we call a rose by any other name would also smell as sweet , said William shakespeare. There is but still a tendency to copy the names because a rose is a rose. An amalgam of colour combinations, names and logos may create a total identification with a product and the allegation of copying the same has given rise to the present litigation. ( 3 ) THE plaintiff is a registered partnership firm engaged in the business of manufacture of incense sticks or agarbathies. Initially, the business was established as a proprietorship concern in 1948 by the father of the present partners of the plaintiff firm and is stated to be now a part of the RANGSONS GROUP started by late Shri n. Ranga Rao. The diversified business now carried on by the Group is stated to not only include the business in question, but also other businesses like electronics and education, though the flagship firm of the Group is remain the plaintiff concern. ( 4 ) THE plaintiff initially is stated to have adopted the brand-name CYCLE BRAND AGARBATHIES and CYCLE THREE-IN-ONE agarbathi which is stated to remain the largest selling brand of agarbathies in India. However, apart from the said brand, the plaintiff is also manufacturing number of other brands such as LIA, SANDALUM and CHANDANAM, parampara, INDIAN BRIDE, PEHCHAN, CYCLE POPULAR, ISHTA, all IN 1, NR YAGNA, RHYTHM AMBER and ORIENT, BANSURI, moods, PRESTIGE, HONEY ROSE, FLUTE INIMAI and NAVIN, FAIRY tale AND RAHASYAMAI. ( 5 ) THE plaintiff claims to be a pioneer in the agarbathi industry with various innovating marketing techniques as also packaging. The plaintiff is, thus, stated to have inter alia introduced the concept of three fragrances in one pack, professionalise techniques for marketing and management, hexagonal and rectangular packaging. The plaintiff is stated to have won export awards both from union of India and Government of Karnataka. ( 6 ) THE plaintiff claims to be marketing its products all over India and spends money in creating consumer awareness and brand building. The plaintiff is stated to have won export awards both from union of India and Government of Karnataka. ( 6 ) THE plaintiff claims to be marketing its products all over India and spends money in creating consumer awareness and brand building. The Marketing and Sales division under M/s. Prosperity Marketing Services (P) ltd. , Mysore is stated to employ more than 250 sales and marketing people and the amount spent on advertisements alone for the financial year 2002-2003 is stated to be rs. 389. 7 lakhs. ( 7 ) THE plaintiff claims that its strength lies in making innovative and original brands of fragrances keeping in mind the preferences and requirements of consumers across classes. Thus, some of the agarbathi products are more used during prayer or pooja, while others are used for creating ambiance or atmosphere. These cater to different times of the day or different types of moods. In this process of innovation, one of the range of products, which was introduced by the plaintiff in the market is LIA range of products. This name is stated to have been adopted in 2001 and copies of some purchase orders have been filed for the relevant period. ( 8 ) THE LIA range of agarbathies consists of variety of exclusive fragrances including ROSE LIA, FRESH / SEASHORE lia, SANDAL / CHANDANAM LIA, JASMINE LIA, NATURE s GIFT lia, VIBRANT / RAINBOW LIA, SPICE WORLD LIA, FRUIT LIA. ( 9 ) THE mark LIA is stated to be distinctive and arbitrary in nature as the word lia has no meaning. The word lia is also stated to be uncommon in agarbathi market where most brands are based on the name of Gods or words associated with worship and rituals. The word lia is, thus, stated to be extremely contemporary and is claimed to have a sophisticated ring to it which sets it apart from other brands in the agarbathi market. One of the features of the marketing of these agarbathies is stated to be the introduction of packs of 35 sticks range at rs. 15/ -. This packaging is stated to be distinctive as compared to most agarbathies in the market sold in boxes of 20-22 sticks per box and offered @ Rs. 10/- per box. One of the features of the marketing of these agarbathies is stated to be the introduction of packs of 35 sticks range at rs. 15/ -. This packaging is stated to be distinctive as compared to most agarbathies in the market sold in boxes of 20-22 sticks per box and offered @ Rs. 10/- per box. ( 10 ) THE get-up and colour scheme of this range of LIA is stated to be distinctive and the packaging cartons are of different colours depending on each colour conjuring associations with the concerned fragrance. Despite this, there is a uniformity in the scheme of the base consisting of pastel shade softening to whitish towards the centre of the box where the logo / trademark of LIA is printed. The LIA trademark is written in sloping font at slightly upward angle with a line underscoring the word lia . The text regarding the name of fragrance, the brand-name of the product and the general effect and the fragrance is printed below the LIA logo. A motif of the plant / location associated with the fragrance is printed above the LIA logo. Small semi-circular and ribbon banners containing text are also printed on the cartons and on the side of the cartons, the brand-name is printed in Devnagiri, Tamil, Kannada, Telugu and malayalam scripts. In view thereof, it is stated that the labels are extremely attractive and eye-catching and have gained enormous reputation in the market. The impact is composite consisting of the brand-name LIA, the colour scheme of the cartons and the various shades used for each fragrance, the labeling, the design lay-out as well as the unique price range, as such the plaintiff claims to own all the common law rights in the LIA brand- name and all the various products in the said range. The art work in lay-out plan of the cartons are stated to have been designed by professionals for the plaintiff firm and the rights are stated to vest in the plaintiff under Section 17 of The Copyright Act, 1957. ( 11 ) THE plaintiff has set out in the plaint the registration details of the artistic works on the carton for several of the LIA range of products, which have been registered on 22. 07. 2003 for SANDAL, JASMINE, ROSE, spice, FRUIT AND FRESH LIA range. ( 11 ) THE plaintiff has set out in the plaint the registration details of the artistic works on the carton for several of the LIA range of products, which have been registered on 22. 07. 2003 for SANDAL, JASMINE, ROSE, spice, FRUIT AND FRESH LIA range. The plaintiff has also stated that an application is pending before the trademark Registry for the mark and label LIA for agarbathies in Class 3. ( 12 ) IN a short span of time of marketing of this product under LIA range, the same is stated to have become extremely popular and earned enormous goodwill and reputation. The turnover, as certified by the Chartered accountants, for the two financial years has been given as under :- year turnover for LIA range of products 2002-2003 rs. 243. 67 Lakhs 2003-2004 rs. 413. 17 Lakhs ( 13 ) THE plaintiff claims to have large presence in Delhi apart from all over the country including for the LIA range of products. The products are stated to have been advertised in major national and regional dailies and the expenditure for the financial year 2003-2004 for this range of products is stated to be Rs. 12. 39 Lakhs. Te sales are stated to have been rising and the products identified with the packaging used in connection with the lia products, which is claimed to be the single source identifier of the said product. ( 14 ) THE plaintiff is aggrieved by the products sold by the defendants in and around Delhi under the name of DIA in cartons which are claimed to be identical to that of the plaintiff s LIA cartons. The DIA range of agarbathies of the defendants is being sold in identical fashion in respect of six of plaintiff s LIA products. Defendants no. 1 and 2 are the Directors of defendant No. 3 company, while defendant No. 4 is the Sales and Marketing Division of defendant No. 3. The mark is stated to be deceptively similar to the plaintiff s LIA mark - both phonetically and visually and the essential and distinctive features of the packaging of LIA agarbathies is stated to have been copied. There is also commonality in the choice of names, price and quantity of the sticks per pack and theme and layout packaging is claimed to be more than a mere co-incidence. There is also commonality in the choice of names, price and quantity of the sticks per pack and theme and layout packaging is claimed to be more than a mere co-incidence. ( 15 ) THE plaintiff has emphasized the fact that the defendant claims to have an address, which is printed on the side of the carton, as follows :- divya Incense (India) Pvt. Ltd. 13, Divya Mansion, 1st Main Road, srirampuram, Saibaba Nagar, bangalore - 560 021. ( 16 ) THE plaintiff claims that on investigation, it has been revealed that there is no such office at the given address, but that there is a building called Keerthi mansion where there is a board carrying the name Keerti parimala Works. The goods of the defendants are stated to be manufactured at NOIDA unit and the defendants also have a showroom in Gaziabad. The defendants cartons have fragrance names printed on the side of the carton in devnagri, Tamil, Kannada and Telugu scripts even though the business of the defendants and their sales really run in U. P. and Delhi. This is stated to be deliberately done to cause deception so that the public assumes that the products of defendants are actually of the plaintiff. ( 17 ) THE plaintiff has also referred to the fact that the name DIA is not co-incidental since the defendants are trading under the name and style divya Inscense (India) pvt. Ltd. , thus, the word divya as such could have been chosen and the word dia is stated to have been chosen solely due to its visual and phonetic similarity to the plaintiffs LIA mark. The plaintiff claims that the test of unsuspecting consumer with average intelligence and imperfect recollection must be applied and if the said test is applied, the consumer is bound to be deceived. The get-up of the two products is stated to be identical and the product is being sold at the unusual rate of Rs. 15/- for 35 sticks in the same fashion as the plaintiff s product. ( 18 ) THE plaintiff has set out in detail the distinctive features, which are common in the two get-ups and it would be appropriate to reproduce the same :- a. ROSE LIA and ROSE DIA lia dia colour Scheme : Pink base softening to whitish towards the centre of the box, where the logo / trademark LIA is printed. ( 18 ) THE plaintiff has set out in detail the distinctive features, which are common in the two get-ups and it would be appropriate to reproduce the same :- a. ROSE LIA and ROSE DIA lia dia colour Scheme : Pink base softening to whitish towards the centre of the box, where the logo / trademark LIA is printed. Colour Scheme : Pink base softening to whitish towards the centre of the box, where the logo DIA is printed. LIA logo : Lia written in a sloping font at a slightly upward angle with a line underscoring the word Lia and a shadow effect provided. DIA logo : Dia written in a sloping font at a slightly upward angle with a line underscoring the word Dia and a shadow effect provided. Text with name and effect of Rose fragrance below LIA logo along with arrested ribbon banner. Text with name and effect of Rose fragrance below DIA logo along with arrested ribbon banner picture of Roses above LIA logo along with semicircular banner. Picture of Roses above DIA logo along with semicircular banner. ROSE LIA printed in Devanagri, Tamil, Kannada, telegu and Malayalam scripts on side of box. ROSE DIA printed in Devanagri, Tamil, Kannada and telegu scripts on side of box. Price : Rs. 15/- for 35 sticks. Price : Rs. 15/- for 35 sticks. B. SANDAL LIA and SANDAL DIA lia dia colour Scheme : Yellow base softening to whitish towards the centre of the box, where the logo / trademark LIA is printed. Colour Scheme : Yellow base softening to whitish towards the centre of the box, where the logo DIA is printed. LIA logo : Lia written in a sloping font at a slightly upward angle with a line underscoring the word Lia and a shadow effect provided. DIA logo : Dia written in a sloping font at a slightly upward angle with a line underscoring the word Dia and a shadow effect provided. Text with name and effect of Sandal fragrance below LIA logo along with arrested ribbon banner. Text with name and effect of Sandal fragrance below DIA logo along with arrested ribbon banner. Picture of Sandalwood above LIA logo along with semicircular banner. Picture of Sandalwood above DIA logo along with semicircular banner. SANDAL LIA printed in Devanagri, Tamil, Kannada, telegu and Malayalam scripts on side of box. Text with name and effect of Sandal fragrance below DIA logo along with arrested ribbon banner. Picture of Sandalwood above LIA logo along with semicircular banner. Picture of Sandalwood above DIA logo along with semicircular banner. SANDAL LIA printed in Devanagri, Tamil, Kannada, telegu and Malayalam scripts on side of box. SANDAL DIA printed in Devanagri, Tamil, Kannada and telegu scripts on side of box. Price : Rs. 15/- for 35 sticks. Price : Rs. 15/- for 35 sticks. C. JASMINE LIA and JASMINE DIA lia dia colour Scheme : Light green base softening to whitish towards the centre of the box, where the logo /trademark lia is printed. Colour Scheme : Light green base softening to whitish towards the centre of the box, where the logo DIA is printed. LIA logo : Lia written in a sloping font at a slightly upward angle with a line underscoring the word Lia and a shadow effect provided. DIA logo : Dia written in a sloping font at a slightly upward angle with a line underscoring the word Dia and a shadow effect provided. Text with name and effect of Jasmine fragrance below LIA logo along with arrested ribbon banner. Text with name and effect of Jasmine fragrance below DIA logo along with arrested ribbon banner picture of flowering Jasmine plant above LIA logo along with semicircular banner. Picture of flowering Jasmine plant above DIA logo along with semicircular banner. JASMINE LIA printed in Devanagri, Tamil, Kannada, telegu and Malayalam scripts on side of box. JASMINE DIA printed in Devanagri, Tamil, Kannada and Telegu scripts on side of box. Price : Rs. 15/- for 35 sticks. Price : Rs. 15/- for 35 sticks. D. VIBRANT / RAINBOW LIA and LAVENDER DIA lia dia colour Scheme : Mauve base softening to whitish towards the centre of the box, where the logo / trademark LIA is printed. Colour Scheme : Mauve base softening to whitish towards the centre of the box, where the logo DIA is printed. LIA logo : Lia written in a sloping font at a slightly upward angle with a line underscoring the word Lia and a shadow effect provided. DIA logo : Dia written in a slopingfont at a slightly upward angle with a line underscoring the word Dia and a shadow effect provided. Text with name and effect of Vibrant fragrance below LIA logo along with arrested ribbon banner. DIA logo : Dia written in a slopingfont at a slightly upward angle with a line underscoring the word Dia and a shadow effect provided. Text with name and effect of Vibrant fragrance below LIA logo along with arrested ribbon banner. Text with name and effect of Lavender fragrance below DIA logo along with arrested ribbon banner. Picture of flowers above LIA logo along with semicircular banner. Picture of flowers above DIA logo along with semicircular banner. VIBRANT LIA printed in Devanagri, Tamil, Kannada, telegu and Malayalam scripts on side of box. LAVENDER DIA printed in Devanagri, Tamil, Kannada and Telegu scripts on side of box. Price : Rs. 15/- for 35 sticks. Price : Rs. 15/- for 35 sticks. E. FRESH / SEASHORE LIA and KEWDA DIA lia dia colour Scheme : Blue base softening to whitish towards the centre of the box, where the logo / trademark LIA is printed. Colour Scheme : Blue base softening to whitish towards the centre of the box, where the logo DIA is printed. LIA logo : Lia written in a sloping font at a slightly upward angle with a line underscoring the word Lia and a shadow effect provided. DIA logo : Dia written in a sloping font at a slightly upward angle with a line underscoring the word Dia and a shadow effect provided. Text with name and effect of Fresh fragrance below lia logo along with arrested ribbon banner. Text with name and effect of Kewda fragrance below DIA logo along with arrested ribbon banner. Picture above LIA logo along with semicircular banner. Picture above DIA logo along with semicircular banner. FRESH LIA printed in Devanagri, Tamil, Kannada, telegu and Malayalam scripts on side of box. KEWDA DIA printed in Devanagri, Tamil, Kannada and telegu scripts on side of box. Price:rs. 15/- for 35 sticks price:rs. 15/- for 35 sticks f. NATURE s GIFT LIA and MOGRA DIA lia dia colour Scheme : Green base softening to whitish towards the centre of the box, where the logo /trademark lia is printed. Colour Scheme : Green base softening to whitish towards the centre of the box, where the logo DIA is printed. LIA logo : Lia written in a sloping font at a slightly upward angle with a line underscoring the word Lia and a shadow effect provided. Colour Scheme : Green base softening to whitish towards the centre of the box, where the logo DIA is printed. LIA logo : Lia written in a sloping font at a slightly upward angle with a line underscoring the word Lia and a shadow effect provided. DIA logo : Dia written in a sloping font at a slightly upward angle with a line underscoring the word Dia and a shadow effect provided. Text with name and effect of Gift fragrance below lia logo along with arrested ribbon banner. Text with name and effect of Mogra fragrance below dia logo along with arrested ribbon banner. Picture of flower buds above LIA logo along with semicircular banner. Picture of flower buds above DIA logo along with semicircular banner. GIFT LIA printed in Devanagri, Tamil, Kannada, telegu and Malayalam scripts on side of box. MOGRA DIA printed in Devanagri, Tamil, Kannada and telegu scripts on side of box. Price:rs. 15/- for 35 sticks price: Rs. 15/- for 35 sticks ( 19 ) IN order to appreciate the visual impact of the two products, it is appropriate to incorporate in the judgment the respective cartons of the plaintiff and the defendants, which are as under:- ( 20 ) THE plaintiff claims that the aforesaid is not a mere co-incidental act, but is a deliberate act of copying in order to deceive the customers and to cause confusion amongst the mind of the said customers. The defendants are, thus, alleged to be attempting to ride piggy back on the reputation and fame of the plaintiff s products and it is not a case of one product being copied, but the entire range itself being copied. The defendants are further alleged to be attempting to utilise the substantial reputation and goodwill of the plaintiff and it is all the more because of the nature of the products where packaging forms an essential and integral part of identification of the products. The defendants act is alleged to be a misrepresentation in the course of trade so as to cause deception about its origin or at least claim an indirect connection with the plaintiff. ( 21 ) THE plaintiff alleges that the defendants act amount to an attempt to pass off its goods as that of the plaintiff, an act of unfair competition, infringement of copyright of the plaintiff and dilution. ( 21 ) THE plaintiff alleges that the defendants act amount to an attempt to pass off its goods as that of the plaintiff, an act of unfair competition, infringement of copyright of the plaintiff and dilution. The deception is stated to be bound to lead to confusion in passing off of the goods and even if the customer evinces interest in the defendants products based on its get-up, the same would be initial interest confusion , which is also a species of passing off. The aspect of dilution is explained as a consequence of utilisation by the defendants of the plaintiff s goodwill arising from the high quantity of products and sales standards and the act of the defendants would, thus, constitute dilution of the plaintiff s brand-name equity in the products. ( 22 ) THE plaintiff has prayed for a decree of permanent injunction in respect of six packages of DIA products in question, which are similar to the LIA products; decree for delivery up; and for damages of Rs. 21,50,000/ -. ( 23 ) AT the stage of the suit being entertained and summons being issued, the interim relief was granted in favour of the plaintiff and Local Commissioners were appointed, who submitted their reports. The situation on visit to the office of M/s. Divya Incense (India) Pvt. Ltd. at srirampuram, Bangalore has been explained by the Local commissioner and it was found that the premises belong to m/s. Keerti Parimala Works, who were manufacturers and suppliers of agarbathi. The said Works also did job work for M/s. Divya Incense. At some stage, M/s. Divya incense had its office in the premises, but the same was stated to have been subsequently moved to another address at Bangalore at 19/2, 2nd Cross, Robertson Block, ramachandrapuram, Bangalore. This office of M/s. Divya incense was also stated to be managed by Mr. Sunder Raj, who was the proprietor of M/s. Keerti Parimala Works. This new premises was also visited by the Local commissioner. The six brand-names of DIA were manufactured there on job-work basis by M/s. Keerti parimala Works, who purchased raw agarbathies from M/s. Divya Incense, Bangalore. The goods after packaging were then shipped to M/s. Divya Incense, NOIDA. ( 24 ) THE Ghaziabad office of the defendants was also visited by the Local Commissioner who found the alleged infringing material. The six brand-names of DIA were manufactured there on job-work basis by M/s. Keerti parimala Works, who purchased raw agarbathies from M/s. Divya Incense, Bangalore. The goods after packaging were then shipped to M/s. Divya Incense, NOIDA. ( 24 ) THE Ghaziabad office of the defendants was also visited by the Local Commissioner who found the alleged infringing material. Similar position arose in respect of the Local Commissioner, who visited the office of the defendants at Ramesh Nagar and NOIDA, U. P. ( 25 ) THE defendants have contested the suit and one of the principal defences is that the trademark of the defendants is not DIA, but LOTUS DIA. This is compared with the plaintiff s CYCLE brand. It is, thus, claimed that LOTUS DIA is a composite mark and, thus, there is no question of deception. It is also claimed that the word lia is not a trademark and is being used as only a quality mark. The defendants have claimed to have adopted the trademark LOTUS DIA bona fide during the course of business, which is distinct from the mark of the plaintiff. The word dia is stated to be an ordinary word used in reference to small earthern lamps , which is commonly used on religious occasions. ( 26 ) INSOFAR as the infringement of copyright is concerned, it is claimed that the trade dress and the artistic features are completely different for the two. The allegation of passing off has been denied and it has been claimed that the plaintiff has, in fact, come with unclean hands before the Court. The defendants claim to have achieved sales worth Rs. 5. 75 Lakhs in 2003-2004 and about Rs. 10. 15 Lakhs from 01. 04. 2004 to 0. 08. 2004. The defendants claim to have engaged the services of an artist at Bangalore to create the copyright and the labels / packaging. It is, thus, stated that the plaintiff is not entitled to any relief of injunction or damages. ( 27 ) ON the pleadings of the parties, the following issues were framed :- 1. Whether the plaintiff is registered partnership firm and the suit is filed and instituted through a competent person and to what effect? 2. It is, thus, stated that the plaintiff is not entitled to any relief of injunction or damages. ( 27 ) ON the pleadings of the parties, the following issues were framed :- 1. Whether the plaintiff is registered partnership firm and the suit is filed and instituted through a competent person and to what effect? 2. Whether the plaintiff is the proprietor both under the statutory and common law of the alleged trademarks and copyrights LIA and artistic works / copyright bearing the same in relation to its alleged products being incense sticks / agarbathies? 3. Whether the defendant impugned trademark lotus dia and its artistic features and labels are identical with or deceptively similar to the trademark / copyrights of the plaintiff sued upon amounting to infringement and passing off and to what effect? 4. Whether the plaintiff is guilty of suppressing material facts and making false statements and to what effect? 5. Whether the defendants have honestly adopted and used his subject matter trademark since 2003 in relation to incense sticks (agarbathies) and to what effect? 6. Whether the defendants, in the alternative, are entitled to benefit of honest and concurrent users and to what effect? 7. Whether the suit is barred by delay, acquiescence, laches, estoppel and waiver? 8. Relief. ( 28 ) ON 25. 08. 2004, learned counsel for the parties agreed that the plaintiff would not claim damages and the defendants would not press the decision on Issue No. 1 relating to the competency of institution of the suit. It was also agreed that the documents filed by both the parties may be read in evidence without formal proof and no oral testimony was required for adjudication of the suit. ( 29 ) PARTIES were head at length and the matter in question is really one of legal issues to be examined in the context of the documents filed by the respective parties. The findings arrived at on the issues are set out hereinafter. ISSUE NO. 1 whether the plaintiff is registered partnership firm and the suit is filed and instituted through a competent person and to what effect? ( 30 ) THE issue relating to competency of the person to institute the suit has not been pressed by the defendants and it is, thus, not disputed that the suit has been properly instituted. ISSUE NO. 1 whether the plaintiff is registered partnership firm and the suit is filed and instituted through a competent person and to what effect? ( 30 ) THE issue relating to competency of the person to institute the suit has not been pressed by the defendants and it is, thus, not disputed that the suit has been properly instituted. It may be noticed that the details in respect of the partnership firm have also been set out with relevant supporting documents as also the authority of Mr. V. Ganesh, the constituted attorney of the plaintiff vide Power of Attorney dated 06. 03. 2004 to institute the suit. The issue is, thus, answered in favour of the plaintiff. ISSUE NO. 2 whether the plaintiff is the proprietor both under the statutory and common law of the alleged trademarks and copyrights LIA and artistic works / copyright bearing the same in relation to its alleged products being incense sticks / agarbathies? issue NO. 3 whether the defendant impugned trademark lotus DIA and its artistic features and labels are identical with or deceptively similar to the trademark / copyrights of the plaintiff sued upon amounting to infringement and passing off and to what effect? ( 31 ) ISSUES No. 2 and 3 have to be dealt with together as they relate to the proprietorship right of the plaintiff as also the allegation of the defendants infringing the right. The plaintiff has claimed that the mark LIA is completely distinctive mark, which is arbitrary in nature and has no meaning. The name LIA is also stated to be extremely uncommon in the agarbathi market. The packaging is stated to have distinctive features and the general colour scheme and lay-out of the package is alleged to have an inalienable association with the plaintiff firm s LIA brand. ( 32 ) THE composite effect of the shades used for each fragrance, the labeling, design lay-out as well as the unique price range is claimed to leave an indelible association with the plaintiff s firm s LIA brand. The plaintiff s claim is of ownership and of copyright in the lia brand as also the ownership and the copyright in the entire get-up, the lay-out and trade dress. The plaintiff s claim is of ownership and of copyright in the lia brand as also the ownership and the copyright in the entire get-up, the lay-out and trade dress. The application of the plaintiff before the Trademark registry is stated to be pending and the plaintiff claims to have acquired goodwill in the mark based on sales figures. In this behalf, the annual turn over figures have been given, which is in the range of Rs. 413. 17 Lakhs for the financial year of 2003-2004. ( 33 ) THE plaintiff has emphasized the fact that the name dia is similar to LIA and the word dia has been chosen with dishonest intention of trading on the goodwill of the plaintiff s LIA. In this behalf, the crucial question would be whether the trade-name under which the defendants are marketing is actually DIA or LOTUS DIA as claimed by the defendant? ( 34 ) LEARNED counsel for the plaintiff sought to emphasize that the defendants could better have kept the word DIVYA which is the name of the company and the motive behind the name DIA was that phonetically and visually, it was similar to the word LIA. Not much can be made out from the plea of the plaintiff that the defendants have been selling agarbathies under different brand-names since even the plaintiff has admittedly been selling agarbathies under different brand-names. ( 35 ) LEARNED counsel for the plaintiff contended that the defendants had copied almost all the essential features of the plaintiff s get-up including the colour scheme, logo, text, picture / motif and the use of vernacular scripts on the side of the carton. The details of this as alleged by the plaintiff have already been set out herein-above in the tabular form. ( 36 ) A further plea raised by the plaintiff is based on the allegation against the defendants of attempting to mislead the customers as to the source / origin of the goods. This arises from the allegation made in the plaint as well as in the report of the Local commissioner, who visited Bangalore, to show that while the business of the defendants was being carried on at u. P. and NOIDA, the use of the scripts of Devnagri, tamil, Kannada and Telugu was only to give an impression as if the product was of the plaintiff. The address given was also stated to be incorrect. ( 37 ) THE allegation of the plaintiff is of identical get-up to confuse the customer in order to ride piggy back on the reputation of the plaintiff. In this behalf, a lot of emphasis has been laid on the fact that the product packaging is an extremely important factor in the consumers purchase decision as it indicates to the customer not only the factual information about the product, but also an overall brand image. An allegation has also been made of the fact that the defendant has used tm next to its name, which is normally used for reference to pending trademark registration, even though the defendants did not have a pending application for the name DIA at the time of filing of the suit. The significance of the addition of word lotus is sought to be diluted in terms of the submissions made by learned counsel for the plaintiff on account of two factors - firstly, the defendants admittedly attempted to file an application for registration of the mark DIA in Class 3 and the application was not for LOTUS DIA and secondly, the primary ingredients of the defendants mark is DIA and the word lotus is an extremely insignificant part of the defendants logo, get-up and packaging. Thus, merely by adding a prefix, the defendants cannot claim that the essential feature is different. In this behalf, it is also stated that the word lotus being a name of the flower is naturally associated with fragrance and is, therefore, descriptive and laudatory in respect of agarbathies and cannot serve as atrademark in relation to agarbathies as its use in this respect is descriptive of character and quality of goods. Thus, the word LOTUS even when used on conjunction with the word DIA, it is the word DIA which remains the essential feature of the mark. ( 38 ) THE written synopsis of the plaintiff contain an elaborate list of judgments, but ultimately learned counsel for the plaintiff confined the reference to only some of the judgments on each of the propositions of law, which was arising for adjudiction. ( 39 ) THE first aspect to be considered, as noticed above, is the impact of the use of the word lotus as a prefix to the word dia . ( 39 ) THE first aspect to be considered, as noticed above, is the impact of the use of the word lotus as a prefix to the word dia . Learned counsel for the plaintiff contended that when two marks have an overall similarity (whether phonetic or visually) and are used in relation to the goods of the same description, then the mere addition of a prefix or suffix is not of much significance as the test is of unwary purchaser of average intelligence and imperfect recollection, who would not split the words into their component parts, but would be deceived by their overall similarity. In this behalf, learned counsel referred to judgment of the supreme Court in Ruston and Hornsby Ltd. v. The Zamindara engineering Co. , AIR 1970 SC 1649 = 1970 (2) SCR 222 wherein it was held that in an action of this kind, the test as to the likelihood of confusion or deception arising from similarity of marks is the same both in infringement and passing off actions. Where the mark is identical, in an infringement action, the Court will not enquire whether the infringement is such as is likely to deceive or cause confusion. However, where the alleged infringement consists of using not the exact mark on the register, but something similar to it, the test of infringement is the same as an action for passing off. The Supreme Court was dealing with two words ruston and rustam . It was held that the trademark is deceptively similar and the mere fact that the word india is added to the respondent s trademark of rustam is of no consequence and the appellant would be entitled to succeed in the action of infringement of the trademark. ( 40 ) LEARNED counsel for the plaintiff next referred to judgment of the Supreme Court in Parle Products (P) Ltd. v. J. P. and Co. ( 40 ) LEARNED counsel for the plaintiff next referred to judgment of the Supreme Court in Parle Products (P) Ltd. v. J. P. and Co. , Mysore, PTC (Suppl) (1) 346 (SC) to advance the proposition that if the overall visual impression from the colour scheme, arrangement of lettering, shape of container, packaging, get-up, trade dress leads to confusion in the minds of the consumer as to the source / origin of the goods and renders the two goods deceptively similar, especially in the case of unwary and gullible customers, it would amount to passing off as well as infringement of the copyright in the packaging and there would be sufficient justification for restraining the defendant. In such cases, proof of actual confusion was not required. It was observed by the Supreme Court as under:- 9. It is therefore clear 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. They should not be placed side by side to find out if there are any differences in the design and if so, whether they are of such character as to prevent one design from being mistaken for the other. 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 this case we find that the packets are practically of the same size, the colour scheme of the two wrappers is almost the same; the design on both though not identical bears such a close resemblance that one can easily be mistaken for the other. The essential features of both are that there is a girl with one arm raised and carrying something in the background there is a farm house with a fence. The word glucose Biscuits is one and gluco Biscuits on the other occupy a prominent place at the top with a good deal of similarity between the two writings. Anyone in our opinion who has a look at one of the packets today may easily mistake the other if shown on another day as being the same article which he had seen before. Anyone in our opinion who has a look at one of the packets today may easily mistake the other if shown on another day as being the same article which he had seen before. If one was not careful enough to note the peculiar features of the wrapper on the plaintiffs goods, he might easily mistake the defendants wrapper for the plaintiffs if shown to him some time after he had seen the plaintiffs. After all, an ordinary purchaser is not gifted with the powers of observation of a Sherlock Holmes. We have therefore no doubt that the defendants wrapper is deceptively similar to the plaintiffs which was registered. We do not think it necessary to refer to the decisions referred to at the bar as in our view each case will have to be judged on its own features and it would be of no use to note on how many points there was similarity and in how many others there was absence of it. ( 41 ) LEARNED counsel for the plaintiff also referred to judgment of Yves St Laurent Parfums and Anr. v. Louden cosmetics Ltd. , 39 IPR 11, which is a judgment of the high Court of New Zealand. Both the parties to the suit were manufacturers of different perfumes and the issue related to the infringement of trademark and passing off of the brand-names of different perfumes. It was observed as under :- The plaintiffs allege that the defendant has used similar trade marks, get-up or packaging, smell or attributes individually or together or in any combination and have thereby caused the defendant s products to be passed off as and for products of or associated with or originating from or having the endorsement or approval of the plaintiffs. They also allege that the defendant has deceived or caused confusion of the public and by reason of all such conduct has caused and will continue to cause loss to the plaintiffs. The law of passing off protects reputation and goodwill by proscribing the misappropriation of it by another s misrepresentation. The proscribed activity involves a misrepresentation made by a person in the course of trade to prospective consumers of the trader s goods or services, such misrepresentation being reasonably foreseeable as injurious to the business or goodwill of another trader and in fact damaging to the goodwill of the trader who sues. The proscribed activity involves a misrepresentation made by a person in the course of trade to prospective consumers of the trader s goods or services, such misrepresentation being reasonably foreseeable as injurious to the business or goodwill of another trader and in fact damaging to the goodwill of the trader who sues. The nature of a relevant misrepresentation can vary. Often it takes the form of a representation that the goods being sold by the defendant are a plaintiff s goods. There may, however, be a representation that the goods being sold by the plaintiff are the defendant s goods, the calculated damage being the appropriation by the defendant of customs which would have gone to the plaintiff. An example is found in the case of Bristol Conservatories ltd. v. Conservatories Custom Built Ltd. (1989) RPC 455. As the essence of the tort is damage to another s business or goodwill by a competitor s misrepresentation, the form of misrepresentation, the way in which it functions, may vary and yet be actionable. It is not necessary for a misrepresentation to be crass. It may be acute and involve a complex of mechanisms of misrepresentation. A representation may operate by invoking a recollection of a plaintiff s intellectual property, and in a number of ways, no single one of which may be compelling but the combination of which is effective. In the contemporary market, where products are advertised and promoted in ways which effectively use the qualities of electronic media, and plainly exploit modern knowledge of psychology and sociology, misrepresentations may relate to distinctive mental images and connotations in which a plaintiff has acquired a proprietary interest. . . . the tort is no longer anchored, as in its early nineteenth century formulation, to the name or trade mark of a product or business. It is wide enough to encompass other descriptive material, such as slogans or visual images, which radio, television, or newspaper advertising campaigns can lead the market to associate with a plaintiff s product, provided always that such descriptive material has become part of the goodwill of the product. Cadbury Schweepes v. Pub Squash Co. (1981) 1 All ER 213 at 218g; (1980) 32 ALR 387. Cadbury Schweepes v. Pub Squash Co. (1981) 1 All ER 213 at 218g; (1980) 32 ALR 387. A relevant deception need not be intentional, but where it is logic may result in a finding that the premeditated conduct has succeeded: Cadbury Schweppes v. Pub Squash Co, supra, at All ER 221c; Slazenger and Sons v. Feltham and Co (1889) 6 RPC 531 at 538. In the present case, there was a deliberate policy of emulation of the names and get-up of designer fragrances and this policy has been practised for many years. That the policy has generally been successful is an inevitable conclusion. Further, it is not by mere coincidence but a foreseeable consequence of the design policy that retailers should apprehend and exploit the correlation between Constance carroll s perfumes and the fragrances of the great designer houses. I turn now to consider the second cause of action specifically in relation to the respective goods of the plaintiffs and the defendant. I do not think it necessary to add much to the comparisons of names and appearances considered earlier in this judgment. Paris / Paradise One need only look from one product to the other to be struck by the similarity which is the product of the nature of the goods (female perfumes), the names, and the combination of dusky pink, black and gold. In my opinion the defendant s product appropriates the goodwill of the plaintiffs by suggesting an association of manufacturing origin between the two; and/or by associating itself with the promotional image of Paris as the fragrance promoted by pink and feminity; and/or by suggesting through the emulation of distinctive colours that Paradise is a less expensive variation of Paris; and/or by implying that the perfume called Paris and the perfume called Paradise are the same but sold by the defendant under the name Paradise; and/or merely by creating the opportunity for confusion in order to exploit it. Any or any combination of these mechanisms of appropriation is enough in all the circumstances to entitle the plaintiffs to injunctive relief and damages or compensation. The passing off is achieved by combining a name which has similarities in its initial letters to Paris, the emotional delight evoked by both the words paris and paradise , the soulfulness of that city and associations with heaven, and the calculated use of the colours of the Paris get-up. The passing off is achieved by combining a name which has similarities in its initial letters to Paris, the emotional delight evoked by both the words paris and paradise , the soulfulness of that city and associations with heaven, and the calculated use of the colours of the Paris get-up. Kouros / Kosmos In view of the comparisons made earlier in this judgment, the evidence of the eyes, even the contrived election of the initial letter K for Cosmos, all that need be said is that the defendant s Kosmos is a blatant copy of the get-up of Kouros, with all the same types of appropriation of the goodwill of the plaintiffs as examined in connection with Paris and Paradise above. Kosmos is not impugned in the statement of claim but if it were it would succumb. The plaintiffs are entitled to the injunctive and pecuniary remedies. Jazz / Java Here again the plagiarism is obvious and deliberate. There is no association between bold black and white in juxtaposition, including in respect of the letters, with the country people or culture of Java. Nor of course is the design of the Java package random coincidence. The juxtaposition of solid black and white panels, albeit triangular rather than rectangular, combined with the unusual placement by monochromatic contrast, emulates the colours, patterns, letters and general graphical characteristics of the get-up of Jazz and the images which are emphasised in the promotion of it. These has been a deliberate and successful attempt to emulate the distinctively created features and promotional image of Jazz, for the purpose of exploiting and replicated designs and impressions. The plaintiffs are entitled to injunctive and pecuniary remedies for the passing off. Opium / Optimism / Optimist As noted earlier in this judgment, Opium has a get-up which is deliberately and obviously Asian, and features colours of ochre, gold and navy. Optimism uses similar colours but its impression cannot reasonably be regarded as Asian or reminiscently Asian in its impression. The Collection 2000 variant, Optimist has leafy depictions reminiscent to a New Zealand eye of polynesian palms, and the mixture of silver, navy and ochre is hardly evocative of the colours used in Opium. The plaintiffs cannot expect to stifle competition by seeking to preclude any other product which is vaguely but not confusingly similar. In respect of Opium the claim of passing off fails. The plaintiffs cannot expect to stifle competition by seeking to preclude any other product which is vaguely but not confusingly similar. In respect of Opium the claim of passing off fails. (emphasis supplied) ( 42 ) LEARNED counsel for the plaintiff contended that this rule apply even if the trade-names are different by reference to the judgment of learned Single Judge of this court in Colgate Palmolive Company and Anr. v. Anchor health and Beauty Care Pvt. Ltd. , 2003 (27) PTC 478 (Del) wherein it was observed as under :- 52. It is the overall impression that customer gets as to the source and origin of the goods from visual impression of colour-combination, shape of the container, packaging, etc. If illiterate, unwary and gullible customer gets confused as to the source and origin of the goods which he has been using for longer period by way of getting the goods in a container having particular shape, colour combination and get-up, it amounts to passing off. In other words, if the first glance of the article without going into the minute details of the colour combination, get-up or layout appearing on the container and packaging gives the impression as to deceptive or near similarities in respect of these ingredients, it is a case of confusion and amounts to passing off one s own goods as those of the other with a view to encash upon the goodwill and reputation of the latter. 53. The plaintiffs have succeeded prima facie in showing from the look of trade dress of the two articles, one manufactured by the plaintiff and another by the defendant from the point of view of not only unwary, illiterate customer / servants of the household but semi- literate also as the trademarks. Colgate and Anchor are written in English language cannot be distinguished by ordinary customer of a country where bare literacy level is abysmally low. There is every likelihood of confusion as to the source on account of the similarity of substantial portion of the container having particular colour combination and also shape of the container which alone helps in determining the allegations of passing off despite stripes in the same colour or in different colour. The criteria is the overall impression from the look of packaging / container containing the goods and articles that can legitimately injunct its rival. The criteria is the overall impression from the look of packaging / container containing the goods and articles that can legitimately injunct its rival. Such an action on the part of infringing party also has an element of unfair competition. 54. May be, no party can have monopoly over a particular colour but if there is substantial reproduction of the colour combination in the similar order either on the container or packing which over a period has been imprinted upon the minds of customers it certainly is liable to cause not only confusion but also dilution of distinctiveness of colour combination. Colour combination, get-up, layout and size of container is sort of trade dress which involves overall image of the product s features. There is a wide protection against imitation or deceptive similarities of trade dress as trade dress is the soul for identification of the goods as to its source and origin and as such is liable to cause confusion in the minds of unwary customers particularly those who have been using the produce over the long period. 55. The difference in the style of the words appearing on the container or packing identifying its manufacturers by way of style, colour combination or textures or graphics is certainly significant or relevant for determining the overall imitation of the container but if a product having distinctive colour combination, style, shape and texture has been in the market for decades as in this case it is in the marketsince 1951 it leads to ineluctable inference of having acquired secondary meaning on account of its reputation and goodwill earned at huge cost. 56. It is not the diligent or literate or conscious customer who always remain conscious to the quality of goods he has been purchasing which determines an offence of passing off. It is the unwary, illiterate and gullible persons who determine by arriving at a conclusion whether the infringed goods are confusingly similar in colour combination, get-up, layout printed over the container or packing. If it is not so then the offence of passing off will cease to have its existence once the guilty party chooses a different trade name. It is the unwary, illiterate and gullible persons who determine by arriving at a conclusion whether the infringed goods are confusingly similar in colour combination, get-up, layout printed over the container or packing. If it is not so then the offence of passing off will cease to have its existence once the guilty party chooses a different trade name. ( 43 ) LEARNED counsel for the plaintiff further submitted that even if the defendants are not enjoined from using specific colours, they can be enjoined from using them in particular graphic display, which is confusingly similar to the logo format implied by the plaintiff. This plea really arises from the stand of the learned counsel for the defendants that the plaintiff cannot have copyright in specific colours, especially taking into consideration the nature of the product, e. g. , incense with fragrance of sandalwood will be required to have a trade dress of sandalwood. In this behalf, learned counsel referred to judgment of the Court of Appeals, Ninth Circuit of U. S. in Vision Sports Inc. v. Melville Corp. , 12 USPQ 2d 1740. In the said case, a judgment of the Court of Appeals, fifth Circuit in Cf. Chevron Chem. Co. v. Voluntary purchasing Groups, Inc. , 21 USPQ 904 was quoted with approval where it was observed as under :- (2 ). . . protect the combination of particular hues of these colors, arranged in certain geometric designs, presented in conjunction with a particular style of printing, in such fashion that, taken together, they create a distinctive visual impression. . . . 44)Another interesting observation made in the said judgment of Vision Sports Inc. s case (supra) relates to the finding that a conscious imitation supports presumption that similarity will cause customer confusion. Likelihood of confusion in the trade dress context is evaluated by reference to the same factors used in the ordinary trademark context; strength of the trade dress, similarity between plaintiff s and defendant s trade dress, evidence of actual confusion, marketing channels used, type of goods and likely degree of purchaser care, and the defendant s intent in selecting its trade dress, The likelihood of confusion determination in trade dress cases must be made in the light of the total effect of the defendant s product and package on the eye of the ordinary purchaser . 45)Learned counsel also advanced the proposition that while second comer will not be barred from making and selling the same product as the first comer, the second comer is under an obligation to name and dress his product in such a manner as to avoid all likely confusion. In this behalf, learned counsel referred to judgment of the Court of Appeals, Second Circuit in harold F. Ritchie, Inc. v. Chesebrough-Pond s, Inc. , 126 uspq 310 where it was specifically observed that as under :- SECOND comer has duty to so name and dress his product as to avoid all likelihood of consumers confusing it with product of first comer; although second comer may endeavour to capture first comer s market, he must do this by giving his product a name and dress descriptive and fanciful in its own right and selling it on its own merit, not by confusing public into mistakenly purchasing his product for competitor s; second comer must create reputation of his own and not trade on goodwill of another product already established at considerable cost and risk; important in determining whether second comer s entrance into market creates possible confusion is any evidence of conscious imitation of first comer s product. . . . . . . . . . . . . In determining whether there is confusing similarity, court should consider names of products in conjunction with similarity of presentation of products with respect to their design and general appearance, containers, tubes, price, size, smell and other nonfunctional aspects; admittedly there is nothing to prevent second comer from selling identical product of the first comer, providing second comer so names and dresses its product as to avoid all likely confusion; test has not been met where not only was there conscious imitation, but also actual confusion resulted from similarity of name and dress. (emphasis supplied) ( 44 ) THE aforesaid judgment was referred to with approval in the judgment of Court of Appeals, Second Circuit in perfect Fit Industries, Inc. v. Aeme Quilting Co. , Inc. , 205 USPQ 287. ( 45 ) LEARNED counsel for the defendants, on the other hand, has referred to the fact that the mark of the plaintiff is still unregistered. It is, thus, contended that the action can only be one of passing off. v. Aeme Quilting Co. , Inc. , 205 USPQ 287. ( 45 ) LEARNED counsel for the defendants, on the other hand, has referred to the fact that the mark of the plaintiff is still unregistered. It is, thus, contended that the action can only be one of passing off. In this behalf, learned counsel has referred to judgment of the Apex court in American Home Products Corporation v. Mac laboratories Pvt. Ltd. and Anr. , AIR 1986 SC 137 where in 36, it was observed that the proprietor of an unregistered trademark whose mark is unauthorisedly used by another cannot sue for infringement of such trademark and his remedy only lies in bringing up of passing off action even though the same is an inconvenient remedy as compared to infringement action. This is so since in a passing off action, the plaintiff will have to prove that his mark has by user acquired such reputation as to become distinctive of the plaintiff s goods so that if it is used in relation to any goods of the kind dealt with by the plaintiff, it will be understood by the trade and public as meaning that the goods are the plaintiff s goods. ( 46 ) IT was, thus, contended by learned counsel for the defendants that once the parameters of a passing off action are considered, the defendants in any case are entitled to escape liability if they can show that the added matter is sufficient to distinguish their goods from those of the plaintiff. In this behalf, learned counsel has referred to judgment of the Apex Court in kaviraj Pandit Durga Dutt Sharma v. Navaratna pharmaceutical Laboratories, AIR 1965 SC 980 where it was observed in para 28 as under :- 28. The other ground of objection that the findings are inconsistent really proceeds on an error in appreciating the basic differences between the causes of action and right to relief in suits for passing off and for infringement of a registered trade mark and in equating the essentials of a passing off action with those in respect of an action complaining of an infringement of a registered trade mark. We have already pointed out that the suit by the respondent complained both of an invasion of a statutory right under Section 21 in respect of a registered trade mark and also of a passing off by the use of the same mark. The finding in favour of the appellant to which the learned Counsel drew our attention was based upon dissimilarity of the packing in which the goods of the two parties were vended, the difference in the physical appearance of the two packets by reason of the variation in their colour and other features and their general getup together with the circumstances that the name and address of the manufactory of the appellant was prominently displayed on his packets and these features were also set out for negativing the respondent s claim that the appellant had passed off his goods as those of the respondent. These matters which are of the essence of the cause of action for relief on the ground of passing off play but a limited role in an action for infringement of a registered trade mark by the registered proprietor who has a statutory right to that mark and who has a statutory remedy in the event of the use by another of that mark or a colourable imitation thereof. While 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, 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 (Vide Section 21 of the Act ). The use by the defendant of the trade mark of the plaintiff is to essential in an action for passing off, but is the sine qua non in the case of an action for infringement. The use by the defendant of the trade mark of the plaintiff is to 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 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 cases. In an action for infringement, the plaintiff must, no doubt, make out that the use of the defendant s mark is likely todeceive, 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 sales show marked differences, or indicate clearly a trade origin different from that of the registered proprietor 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. ( 47 ) THE Division Bench of this Court in M/s. Johnson and johnson and Anr. v. Christine Hoden India (P) Ltd. and Anr. , 1988 PTC 39 observed that the main question is not the intention of defendant in using certain words, but the probable effect of such action on minds of the customer. Thus, colour scheme, lettering style, etc. become of significance. ( 48 ) LEARNED counsel for the defendants also strongly relied on the fact that the mark of the defendants is a composite mark LOTUS DIA and not merely DIA and, thus, the passing off action should be totally ruled out. Thus, colour scheme, lettering style, etc. become of significance. ( 48 ) LEARNED counsel for the defendants also strongly relied on the fact that the mark of the defendants is a composite mark LOTUS DIA and not merely DIA and, thus, the passing off action should be totally ruled out. In this behalf, learned counsel relied upon the judgment of learned Single Judge of this Court in Bharat Hotels limited v. Unison Hotels Limited, 2004 (28) PTC 404 (Del ). The matter in issue related to the use of the word grand in respect of the hotel industry. ( 49 ) A reference was also made to the judgment of a learned single Judge of this Court in Sunstar Lubricants Limited v. Federal Chemicals Industries, 1996 V AD (Delhi) 594 where an interim injunction was declined on the ground that there was no deceptive similarity between the trademark GOLDEN CRUISER 1200 and SUPER SUN CRUISER 2001. It may be noticed that the finding was arrived at on the basis that the two trademarks were phonetically different and the get-up and colour scheme of the boxes were entirely different. ( 50 ) SIMILARLY, in Fitchetts Ltd. v. Loubet and Co. Ltd. , (1919) 36 R. P. C. 296 Ch. D. in respect of soap and soap powder, the action for infringement and passing off was rejected in respect of the two trademarks LITO and Y-TO as compared to RITO. .