JUDGMENT : J.M. Malik, J. This appeal is directed against the order dated 3rd March, 2005, delivered by learned Additional District Judge, whereby the application moved by the appellant/plaintiff under Order 39 Rules 1 and 2 in a case under the Trade Marks Act was partly allowed. The operative portion of the impugned order runs as follows: "12. However, from the perusal of the pouches of both the parties which are on record I am of the opinion that defendant has adopted the color scheme with pictures of a boy and a girl as that of the plaintiffs in order to attract to themselves some part of plaintiffs goodwill and trade on their representation and in fact to represent the public that their goods are the goods of the plaintiffs this is a case of passing off. Any one, in my opinion, who has a look at one of the pouches today may easily mistake other if shown on another day as being the same article which he had seen before. If one was not carefully enough to note the peculiar features of the plaintiffs wrapper, he might easily mistake the defendants wrapper for the plaintiffs, if shown to him some time after he had seen the plaintiffs. The defendants use of the colour combination with pictures of a boy and a girl on their wrappers is likely to cause confusion and deception to the purchasers of average intelligence and imperfect recollection. The colour scheme and the photograph of the children would certainly deceive the consumers. 13. In these circumstances and for the above said reasons, I party allow the application and restrain the defendants from manufacturing, marketing or offering for sale, advertising and selling their product SIDHMOLA under the identical red and yellow coloured label/pouch/wrapper with photograph of a boy and a girl which may be identical and/or deceptively similar to the applicant's red and yellow coloured lable/pouch with photograph of children in relation to the Ayurvedic medicines, chewable tablets, churan, etc. It is clarified that there is no stay against the use of trade name SIDHMOLA by the defendant. Application stands disposed of. However, anything expressed herein above shall not tantamount to an expression of opinion on the merits of the case. No order as to costs." 2. The facts of the present case are these. It is clarified that there is no stay against the use of trade name SIDHMOLA by the defendant. Application stands disposed of. However, anything expressed herein above shall not tantamount to an expression of opinion on the merits of the case. No order as to costs." 2. The facts of the present case are these. the appellant is carrying on its old and established business as manufacturer and merchant of ayurvedic medicinal preparations, churan, chewable tablets etc. under the name and style of SSG Pharma Private Limited. The appellant is the proprietor and owner of trade mark "SATMOLA". The appellant is registered under the Copyright Act since 1983. According to the appellant, on 7th December, 2004, it transpired that the respondent had launched a similar tasty chewable tablet bearing deceptively similar inner and outer pouch packagings having red and yellow colour combination and device of two kids. The get up of the pouch packagings of the respondent is deceptively similar to those of the appellant and the said fact is evident on a bare perusal of the competing inner and outer pouch packagings of the parties. The respondent has also placed the descriptive matters as well as slogans at almost the same placement in the pouch as that of the appellant. 3. The respondent contested the present case. Its principal, defence was that his trade mark "SIDHMOLA" is totally different, phonetically as well as visually, than that of the appellant's trade mark "SATMOLA". There is no confusion or deception in the minds of the consumers. His trade mark "SIDHMOLA" was already registered in his name under the Trade Mark Act, 1999. It is further stated that the respondent has been using trade mark "SIDHMOLA" on their packaging by depicting the same in a special and particular artistic manner wherein each alphabet of it had been represented artistically in different colors along with picture of two kids (one boy and one girl) and a joker with some descriptive phrases. It is pointed out that the aforesaid artistic work on the respondent's packaging is the original artistic work totally different than that of the artistic work on the packaging of the appellant. 4. The trial Court in its impugned order has referred to an authority reported in Griffon Lab. It is pointed out that the aforesaid artistic work on the respondent's packaging is the original artistic work totally different than that of the artistic work on the packaging of the appellant. 4. The trial Court in its impugned order has referred to an authority reported in Griffon Lab. (P) Ltd. v. Indian National Drug Co., (1989 I PLR 9), wherein it is held that the trade marks SORBILINE and SORBATINE are not deceptively similar. The trial Court also referred to an authority reported in Johann A. Wulfing v. Chemical Industrial and Pharma, (1984 PTC 81), wherein it is held that the trade mark CIPLAMINA is not phonetically similar to COMPLAMINA. Besides these Judgements, the trial Court has also referred to many other authorities produced by respective counsel for the parties. Before the trial Court, besides the two Judgement cited above, counsel for the respondent has relied upon the Judgements reported in Power Control Applicances and Others v. Sumeet Machines Pvt. Ltd. and Others, 1995 PTC 165 , Cadila Healthcare Ltd. v. Cadila Pharmaceuticals Ltd., 2001 PTC 541 (SC), Parle Products (P) Ltd. v. I.P. and Co., PTC (Supp) (1) 346 (SC), F. Hoffiman La Roche v. Geoffry Manners and Co., 1982 PTC 335 (SC), Surendra Kumar v. Dodha House, 1998 PTC (18) (All), Dhana Vilas Madras Snuff v. Vani Vilas Snuff Co., 2003 (27) PTC 417 (Mad) (DB); Roshan Lal Oil Mills v. Assam Co. Ltd., 1996 PTC (16) 699 (Del.), Laxmikant v. Patel v. Chetanbhat Shah, 2002 (24) PTC 1 (SC), Mahendra and Mahendra Paper Mills v. Mahindra and Mahindra Ltd., 2002 (24) PTC 121 (SC) and R.G. Anand v. Delux Films, PTC (Supp) (1) 802 (SC). Counsel for the appellant has relied upon the Judgments reported in The Dall Calender Supplying Bureau Sivakasi v. United Concern, AIR 1967 Madras 381 (V 34 C 121), Colgate Palmolive Company and Another v. Anchor Health and Beauty Care Pvt. Ltd., 2003 (27) PTC 478 (Del), R.R. Oomerbhyoy Pvt. Ltd. v. Court Receiver, High Court, Bombay and Anr., 2003 (27) PTC 580 (DB) (Bom), Amritdhara Pharmacy v. Staya, AIR 1963 Supreme Court 449 (V 50 C 63), P.M. Diesels v. M/s. S.M. Diesels, 1994 (28) DRJ 574 , Atlas Cycle Industries Ltd. v. Hind Cycles Limited, ILR (1973) I Delhi 393, Parle Products (P) Ltd. v. J.P. and Co. Mysore, PTC (Suppl) (1) 346 (SC), Kamal Trading Co., Bombay and Others v. Gillette U.K. Limited, Middle Sex, England, (1988 PTC 1), Playboy Enterprises, Inc. v. Bharat Malk and Anr., 2001 PTC 328 (Del), Scientific Compounds and Processes Private Limited and Another v. Hanuman Cottage Industry, 2002 (24) PTC 249 (Mad), Power Control Appliances and Others v. Sumeet Machines Pvt. Ltd. and others, ( 1995 PTC 165 ), Amrit Soap Company v. New Punjab Soap and Factory, 1989 (2) Arb. LR 242, the Tata Oil Mills Company Ltd. v. Moti Soap Factory Private Limited, Cases and Material on Trade Mark Page 931 Standard Pharmaceuticals Limited v. U.P. Drug House Private Limited, A.F.O. 63 of 1979 decided by Allahabad H.C., on 30.10.79 and Bimal Govindji Shah v. Panna Lal Chandu Lal, 1997 PTC (17). 5. I have heard counsel for the parties. Learned counsel for the respondent drew my attention towards an authority reported in Wander Ltd. and Another v. Antox India (P) Ltd., 1991, The Patents and Trade Marks Case Volume-XI page 1, wherein it is held, "........the Appellate Court will not interfere with the exercise of discretion of the Court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the Court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate Court will not reassess the material and seek to reach a conclusion different from the one reached by the Court below if the one reached by the Court was reasonably possible on the material. The appellate Court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the Trial Court reasonably and in a judicial manner the fact that the appellate Court would have taken a different view may not justify interference with the trial Court's exercise of discretion. After referring to those principles Gajendragadkar, J in Printers (Mysore) Private Ltd. v. Pithan Joseph, 1960 (3) SCR 713 said: "........These principles are well established, bust as has been observed by Viscount Simon in Charles Osention and Co. After referring to those principles Gajendragadkar, J in Printers (Mysore) Private Ltd. v. Pithan Joseph, 1960 (3) SCR 713 said: "........These principles are well established, bust as has been observed by Viscount Simon in Charles Osention and Co. v. Johnston the law as to the reversal by a Court of appeal of an order made by a Judge below in the exercise of his discretion is well established, an any difficulty that arises is due only to the application of well settled principles in an individual case. The appellate Judgement does not seem to defer to this principle." 6. Counsel for the respondent also drew my attention towards an authority reported in I.R. Kapoor v. M/s. Micronix India, (JT 1994 (5) S.C. 37), wherein it is held that trade names 'MICROTEL' and 'MICRONIX' are not deceptive. 7. He also drew my attention towards SBL Ltd. v. Himalaya Drug Co., (1997 PTC (17) (DB)), wherein it is held that 'Liv. 52' is not similar to or deceptive with 'LIV-T'. 8. I SEE NO MERITS IN THESE ARGUMENTS. THE TRADE NAMES "SATMOLA" AND "SIDHMOLA" ARE PHONETICALLY SIMILAR AND DECEPTIVE. IT IS LIKELY TO CAUSE CONFUSION IN THE MINDS OF THE ORDINARY PURCHASER. THE ABOVE-SAID AUTHORITIES HAVE DIFFERENT FACTS. ALTHOUGH, THE WORD "MOLA" IS COMMONLY USED SUCH AS IN HAJMOLA, SATMOLA, ETC., YET THERE IS A WAFER-THIN DIFFERENCE BETWEEN THE ABOVE-SAID TWO NAMES, SATMOLA AND SIDHMOLA. 9. In Ruston and Hornby Ltd. v. Z. Engineering Co., ( AIR 1970 SC 1649 ), it is held that trade names "RUSTON", "RUSTAM" and "RUSTAM INDIA" are deceptive. 10. In Corn Products Refining Co. v. Shangrila Food Products Ltd., AIR 1960 SC 142 , it was held that Trade Mark "Gluvita" used with respect to biscuits and Trade Mark "Glucovita" used with respect to glucose were likely to cause confusion. 11. Similar view was taken in Parle Products v. J.P. and Co. Mysore, AIR 1972 SC 1359 , wherein it was held that "Gluco Biscuits" and "Glucose Biscuits" are deceptively similar and create confusion. 12. 11. Similar view was taken in Parle Products v. J.P. and Co. Mysore, AIR 1972 SC 1359 , wherein it was held that "Gluco Biscuits" and "Glucose Biscuits" are deceptively similar and create confusion. 12. In Amritdhara Pharmacy v. Satyadeo Gupta, ( AIR 1963 SC 449 ), it is held that overall structural and phonetic similarity of the two names 'Amritdhara' and 'Lalshmandhara' in respect of the same goods, i.e., medicinal preparation would case deception and confusion in the minds of men of average intelligence and hence amounts to infringement within the meaning of Section 10 of the Trade Marks Act, 1940. 13. In M/s. Anglo Dutch Paint Colour and Varnish Works Private Limited v. M/s. India Trading House, AIR 1977 Delhi 41, this Court had observed that "the Supreme Court in Corn Products Refining Co. (supra) and Amritdhara Pharmacy v. Satya Deo Gupta, (Supra) has laid down the test for comparing the two marks as under: (1) The question whether the two marks are so similar as likely to cause confusion or deceive is one of the first impression. It is for the Court to decide this question. (ii) The question has to be approached by applying the doctrine of fading memory, i.e. from the point of view of a man of average intelligence having imperfect recollection. (iii) Whether the overall visual and phonetic similarity of the two marks is likely to deceive such a man or cause confusion that he may make mistake the goods of the defendant for those of the plaintiff. (iv) The other questions which are: (i) Who are the persons who are likely to be deceived, and (ii) What rules of comparison are to be adopted in judging whether such resemblance exists." 14. In Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd., (2001 PTC 541 (SC)) trade marks "Falcitab" and "Falcigo" are found to be of similar nature. 15. In Satyam Infoway Ltd. v. Sifynet Solutions Pvt. Ltd., ( AIR 2004 SC 3540 ) plaintiff was carrying internet business under through domain names starting.with words "Siffy". Defendant subsequently starting business under domain name "Siffy net". Plaintiff was found to be prior user. It was held that defendant's use of "Siffy" was not bona fide. 16. 15. In Satyam Infoway Ltd. v. Sifynet Solutions Pvt. Ltd., ( AIR 2004 SC 3540 ) plaintiff was carrying internet business under through domain names starting.with words "Siffy". Defendant subsequently starting business under domain name "Siffy net". Plaintiff was found to be prior user. It was held that defendant's use of "Siffy" was not bona fide. 16. Similar view was taken in a latest case pronounced by the Apex Court in an authority reported in Ramdev Food Products Private Ltd. v. Arvind Bhai Ram Bhai Patel and Ors., ( 2006 (8) Scale 631 ) and by this Court in Keder Nath v. Monga Perfumery and Flour Mills, AIR 1974 Delhi 12 and M/s. Avis International Ltd. v. M/s. Avi Footwear Industries and Anr., 1991 Delhi 22. 17. The most important fact which must be borne in mind is whether the two words are deceptively similar in sound or not. The words "Sat" and "Sidh" are so similar that these are going to confuse an ordinary customer, Although there is a visual resemblance between the two trade marks, yet, the ocular comparison is not always the decisive test. The resemblance between the two marks must be considered with reference to the ear as well as the eye. There is a close affinity of sound between the words "Sat" and "Sidh". This view neatly dovetails with the observations made by the Apex Court in K.R. Chinna Krishna Chettiar v. Ambal and Co., (PTC (Suppl) 258 (SC)), wherein the facts were almost similar. It was observed that there is a close affinity of sound between the words Anibal and Andal. It was further held that the word 'Sri' may be regarded as in common use. The distinguishing feature of the respondent's mark is Anibal while that of the appellant's mark is Andal. The two words are deceptively similar in sound. Moreover, it must be borne in mind that human memory is vicissitudinary on that count, too, a confused person may purchase any of the two goods. The doctrine of passing off is a common law remedy whereby a person is prevented from trying to wrongfully utilise the reputation and goodwill of another by trying to deceive the public through "passing off' his goods. 18. The Supreme Court in Parle Products (P) Ltd. v. J.P. And Co. The doctrine of passing off is a common law remedy whereby a person is prevented from trying to wrongfully utilise the reputation and goodwill of another by trying to deceive the public through "passing off' his goods. 18. The Supreme Court in Parle Products (P) Ltd. v. J.P. And Co. Mysore, (supra) has laid down the test to determine the question when a trade mark is deceptively similar to another. It was observed: "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 on to accept the other if offered to him." A little later, it was observed: "After all an ordinary purchaser is not gifted with the powers of a Sherlock Holmes." 19. From the prima facie evidence available on record it is clear that the intentions of respondent were not bona fide. It is apparent that the appellant must have suffered irreparable loss due to the above-said similarity of pouches and similarity of names used by both the parties. Even if the respondent uses an altogether different pouch at this stage due to the similarity of names confusion is bound to be there. All the three essential ingredients, that are, prima facie case, balance of convenience, irreparable loss lean on the side of the appellant. 20. In Midas Hygiene Industries P. Ltd. v. Sudhir Bhatia, 2004(28) PTC 121 (SC), it is held that, "5. The law on the subject is well settled. In cases of infringement either of Trade Mark or of Copyright normally an injunction must follow. Mere delay in bringing action is not sufficient to defeat grant of injunction in such cases. The grant of injunction also becomes necessary if it prima facie appears that the adoption of the Mark was itself dishonest." 21. Keeping in view the overall facts and circumstances explained above, I restrain the respondent from using the trade name "SIDHMOLA" till the pendency of the suit before the trial Court. 22. FAO No. 259/2005 is allowed. CM 12704/2005 In view of the appeal being allowed, no further orders are required to be passed in this application and the application stands disposed of.