Judgment G. Rajasuria, J. The long and the short of the relevant facts absolutely necessary and germane for the disposal of this application would run thus: (i) The applicant, as plaintiff, has filed the suit seeking the following reliefs: “(a) to grant a perpetual injunction restraining the defendants, their men, servants, agents, executors, assigns or, any one claiming through or under them from in any manner manufacturing any/or marking IMFS, In particular Brandy, under the trade mark “Brihan’s Gold Napoleon’ or under any other trade mark which is identical with or deceptively similar to the plaintiffs trade mark Imperial’s ‘Gold Napoleon’ so as to pass off the defendants’ goods as and for that of the plaintiffs or in any other manner whatsoever; (b) to direct the defendants to surrender to plaintiff for destruction of all bottles, labels, dyes, blocks, moulds, screen prints, packing materials and other materials bearing the trademark “Brihan’s Gold Napoleon’ or any other trade mark which is identical with or deceptively similar to the plaintiffs trade mark Imperial’s ‘Gold Napoleon’; (c) to direct the defendants to pay to the plaintiff a sum of Rs. 1 crore as special damages for the loss inflicted upon the plaintiff by the adoption of identical trademark ‘Gold Napoleon’ in respect of Brandy.” (ii) The same applicant filed this application with the following prayer. “to grant an ad-interim injunction restraining the respondents, their men, servants, agents, executors, assigns, or any one claiming through or under them’ from in any manner manufacturing and/or marketing IMPS, in particular Brandy, under the trade mark ‘Brihan’s Gold Napoleon’ or under any other trade mark which is identical with or deceptively similar to the Applicant’s trade mark Imperial’s ‘Gold Napoleon’ so as to pass off the respondents’ goods as and for that of the applicant’s or in any other manner whatsoever, pending disposal of the suit.” (iii) The respondents/defendants filed the counter, refuting and challenging, Impugning and disputing the genuineness of the averments/allegations in the affidavit accompanying the application as well as in the plaint. 2. For convenience sake, the parties are referred to before under according to their litigative status and raking in the suit. 3. Heard both sides. 4. 2. For convenience sake, the parties are referred to before under according to their litigative status and raking in the suit. 3. Heard both sides. 4. Tour d’Horizon of the learned counsel for the plaintiff would succinctly and precisely, pithily and briefly be set out thus: (a) The plaintiff is having his trade mark ‘Gold Napoleon’ in selling brandy and he is having roaring business in selling such item in Kerala, Karnataka, Goa, Pondicherry and Himachal Pradesh. .(b) In Tamil Nadu, the plaintiff tried to obtain licence and set up a distillery and sell the product, but he could not succeed, nonetheless he is trying. .(c) The defendants, without having any right to use the same trade mark “Gold Napoleon”, has started recently selling brandy under the said name and that is being sold in TASMAC shops of Tamil Nadu. .(d) Unless the defendants are injuncted, the reputation of the plaintiff would go down and the act of the defendants is nothing but deceptively and dishonestly passing off the good product of the plaintiff as that of the defendants. .(e) Puducherry is very nearbyChennai and the plaintiffs product is being sold in Puducherry and has gained reputation. The people do travel from Pondicherry to Chennai and vice versa often and thereby, the product of the plaintiff gained reputation even in Chennai and in such a case even area wise restriction also would be against the interest of the plaintiff. .(f) All along the defendants have been selling brandy under the trade mark “Napoleon Brandy”, whereas, after sensing and realising that, among the liquor consuming public there is a huge demand for ‘Gold Napoleon’, the defendants started deceptively emulating and simulating the product of the plaintiff and as such, they have to be injuncted. In support of his contention, the learned counsel for the plaintiff has cited various decisions. 5. In support of his contention, the learned counsel for the plaintiff has cited various decisions. 5. By way of torpedoing and pulverising the arguments as put forth on the side of the plaintiff, the learned counsel for the defendants has put forth his arguments, which could be tersely and briefly, pithily and precisely be set out thus: .(a) the plaintiff cannot have monopoly over the term “Gold”; (b) In the typed set of papers filed by the defendants it could easily be seen from Page No. 41 onwards that in umpteen liquor products the word ‘Gold’ and ‘Golden” are found used; .(c) There is no similarity between the product of the defendants and the product of the plaintiff. .(d) The product of the defendants is not mere ‘Gold Napoleon’, but it is “Brihan’s Gold Napoleon Brandy’, whereas, the product of the plaintiff is ‘Imperial’s Gold Napoleon Brand” with ‘Napoleon Device’ and the word French and also the letter VSOP. .(e) The shape and size of the bottles, as could be seen from the typed set of papers, are entirely different. .(f) Simply because the plaintiff is doing business under the name and style ‘Imperial’s Gold Napoleon Brandy’ in some States, he cannot claim monopoly over that trade mark and throttle the business of the defendants. .(g) The plaintiff himself is a pirate, so far the said mark ‘Gold Napoleon’ is concerned, as in Air Ports, Five Star Hotels and in various other hotels through out India, the item called “Gold Napoleon” spirit i.e., liquor could be witnessed as sold and easily be got by anyone, who intends to drink liquor and in such a case, a pirate himself cannot approach this Court and seek injunction as against another, as though the defendants are pirates. Accordingly, the learned counsel for the defendants prays for the dismissal of the injunction application. 6. The Point for consideration is as to whether the defendants are indulging in passing off their goods, by simulating and emulating the trade mark of the plaintiff ‘Gold Napoleon Brandy’ as their own product? and whether they have to be injuncted from doing so?. 7. At the out set itself I would like to point out that a catena and plethora of decisions have been cited on both sides. As such, it is just and necessary to refer to those precedents. 8. and whether they have to be injuncted from doing so?. 7. At the out set itself I would like to point out that a catena and plethora of decisions have been cited on both sides. As such, it is just and necessary to refer to those precedents. 8. Indubitably and indisputably, unarguably and unassailably, the plaintiff and the defendants have been doing liquor business for a long time and they are not new entrants. The plaintiff has been doing liquor business under the name and style “Imperial’s Gold Napoleon Brandy” with Napoleon device and the word Trench’ and the letter VSOP. 9. As correctly pointed out by the learned counsel for the plaintiff the word “Imperial’ is not easily visible because it is found printed in such an indiscernible manner in the label affixed on the Brandy bottle, but the term ‘Gold Napoleon” is prominent, as it is found printed in golden letters with black background. Beneath that one could see the device of Napoleon and the terms ‘French and the letters ‘VSOP’ also. However, the learned counsel for the plaintiff would submit that the words “Gold Napoleon” are prominent and a person who approaches the liquor shop would be able to identify only by the term ‘Gold Napoleon’ and not by the other additions found in the label. 10. Whereas, by way of contradicting such an argument, the learned counsel for the defendants, by inviting the attention of this Court to the judgment passed me in O.A. Nos. 1130 and 1131 of 2009 dated 211. 2009, would develop his argument that in the said judgment it has been observed that the main words alone should not be taken into account, but the descriptive words as well as the words signifying the name of the product should be taken in to and in juxtaposition the disputed items should be seen and accordingly a decision should be rendered. 11. I would like to follow my own judgment and there could be no second thought over it, but it should be applied to appropriate set of facts and circumstances, unlike the ones here. 11. I would like to follow my own judgment and there could be no second thought over it, but it should be applied to appropriate set of facts and circumstances, unlike the ones here. In this matter what I would like to point out is that the defendants, no doubt, are using the trade name “Brihan’s Gold Napoleon Brandy, but the word “Brihan’s” is found printed in small letters, so to say, not even half the size of the word ‘Gold” and the word “Gold’ is found printed almost 1/3rd sixe of the word ‘Napoleon’ and beneath that one could see the term ‘Brandy’ and the other letters found in the label are not readily discernible on a mere look at the label. 12. At page No.69 of the typed set of papers filed by the D2, the photos of both the products of the plaintiff and the defendants could be seen. No doubt, the size of the bottle used by the plaintiff differs from the size of the bottle used by the defendants, and it is quite clear obviously and axiomatically. 13. In the earlier judgment of mine dated 211. 2009 passed in O.A. Nos.1130 and 1131, I compared both the products in juxtaposition and found that much of a muchless could not be seen between the two, but here similarities between the two labels could be seen from the view point of the users of the products. 14. It is a common or garden proposition that liquors especially brandy is being sold by one and the same manufacturer in various bottles in various sizes and shapes, just for the purpose of attracting the consumers. The question arises as to whether the person who visits an ordinary liquor shop, without any sophistication, would be able to distinguish the product of the plaintiff from the product of the defendants. Any unwary liquor consumer, among the general public, would tend to think that one and the same manufacturer is selling the Brandy in board sized bottle as well as in narrow shaped bottle and he may mistake one for the other. 15. In the decisions cited on both sides, which I would be referring to them infra, the law has been laid down to the effect that the psyche of a consumer should be taken Into consideration in passing off actions. 16. 15. In the decisions cited on both sides, which I would be referring to them infra, the law has been laid down to the effect that the psyche of a consumer should be taken Into consideration in passing off actions. 16. Here sophisticated personalities or high class personalities are not consuming, as correctly putforth by the learned counsel for the plaintiff, the ‘brandy’, which is being sold in Tasmac shops or in similar such ordinary liquor shops and by stepping into the shoes of such ordinary person, it should be seen as to whether such a consumer might tend to think that one and the same firm or company is manufacturing and selling both types of brandy. Even the difference in printing the words would not serve the purpose, as nowadays a typical business man is prone to resort to several methods and manners of printing labels as well as using containers in selling his one and the same product. 17. On the plaintiff side, the following list of decisions has been filed, so as to indicate that various High Courts in India, including the Honourable Apex Court, in the under mentioned cases granted injunction and it would run thus: .(i) N.R. Dongre and Another v. Whirlpool Corporation and Another (1996) 5 SCC 714 ; (Whirlpool Usha Sriram or Lexus v. Whirlpool) .(ii) Laxmikant V. Patel v. Chetanbhai Shah and Another AIR 2002 SC 275 : (2002) 3 SCC 65 ; (Muktajivan Colour Lab And Studio v. Muktajivan Colour Studio) (iii) Midas Hygiene Industries (P) Ltd and Another v. Sudhir Bhatia and Others (2004) 3 SCC 90 (Laxman Rekha v. Magic Laxman Rekha) .(iv) Cadila Health Care Ltd., v. Cadila Pharmaceuticals Ltd AIR 2001 SC 1952 : (2001) 5 SCC 73 : (2001) Supp MLJ 103; (Falcigo v. Falcitab) .(v) Dhariwal Industries Ltd and Another v. M.S.S. Food Products AIR 2005 SC 1999 : (2005) 3 SCC 63 : (2005) 2 MLJ 139; (Malikchand v. Manikchand) .(vi) Induss Food Products Equipments Ltd. v. Rani Sati Ice-Cream Pvt Ltd., (1997) PTC .(17) (Rollick V. Frollick) (vii) Indian Shaving Products Ltd and Another v. Gift Pack and Another (1998) PTC (18); (Duracell Ultra v. Ultra) (viii) Unreported judgment of the Gujarat High Court dated 20.7.2005 Passed In C.A. No.4241 of 2005-Cadbury Ltd And 2 v. ITC Ltd And 1; (Cadbury Milk Eclairs v. Candyman Choco Eclairs) 18. By way of countering and torpedoing the said list on the defendant’s side, the following list has been filed by the defendants and it is extracted here under: .(i) McCain International Limited v. Country Fair Foods Limited and Another (1982) PTC 156; (Mccain Oven Chips v. Country Fair Oven Chips and Birds Eye Oven Chips) .(ii) Kaviraj Pandit Durga Dutt Sharma v. Navaratna Pharmaceutical Laboratories AIR 1965 SC 980 ; (Navratna Kalpa v. Navratna Pharmaceutical Laboratories) (iii) Prem Singh v. Ceeam Auto Industries AIR 1990 Delhi 233; (Waxpol v. Mexpal) .(iv) Sunstar Lubricants Ltd. v. Federal Chemical Industries(1997) PTC (17); (Sun 2001 Cruiser v. Golden Cruiser 1200) .(v) Diageo North America Inc. and Another v. Shiva Distilleries Ltd. (2007) 35 PTC 610 (Del); (Smirnoff v. Brisnoff) .(vi) Unreported judgment of the Delhi High Court dated 210. 2009- Rhizome Distilleries .P. Ltd., and Others v. Pernod Ricard S.A. France and Others; (Royal Salute etc.. v. Royal Stag Etc.) (vii) Carew Phipson Limited v. Deejay Distilleries Pvt. Ltd. AIR 1994 Bombay 231; (Blue Riband Duet Gin N Lime v. Blue Riband Tango Gin N Orange) (viii) Asian Paints Limited v. Home Solutions Retail (India) Limited (2007) 35 PTC 697 (Bom); (Asian Paints Home Solutions v. Home Solutions) .(ix) BDA Breweries and Distilleries Ltd. v. Shree Durga Distillery (2002) 25 PTC 704 (Karn); (Officers Favourite v. Officers Choice) .(x) Parle Products Limited v. Bakemans Industries Limited (1998) PTC (18); (Parle-G Gluco v. Glucogold) .(xi) Unreported judgment of the Madras High Court dated 110. 2009 In Nutrine Confectionery Co. Ltd. v. Icon Houshold Products Pvt. Ltd and Another; (Lacto Super And Lactaire v. Candyman Lacto Creme Center) (xii) Unreported judgment of the Madras High Court dated 211. 2009 in Sun Pharmaceutical Industries Limited. v. Cadila Healthcare Ltd and Another. (Veniz v. Venz) 19. A poring over and perusal of the decision cited on either side would point out that at different periods of time different views emerged. In one and the same High Court, different Judges adopted different views. 2009 in Sun Pharmaceutical Industries Limited. v. Cadila Healthcare Ltd and Another. (Veniz v. Venz) 19. A poring over and perusal of the decision cited on either side would point out that at different periods of time different views emerged. In one and the same High Court, different Judges adopted different views. Wherefore, I would like to highlight and spotlight that for the purpose of understanding and assessing the common sense or psyche of a man on the top of a Clapham omnibus or a common man or a lay man, the sense of perception and the consumer awareness prevailing among the people should be considered and it differs from one period to another period and one era to another era. As such, the decisions rendered, taking into consideration the perception of the 19th Century common man would not hold good in respect of the common man of the 20th century and thereafter. The knowledge, perception and consumer awareness of a common man differs from period to period. 20. Here in passing off action, the judge is expected to step into the shoes of a common man of the present period. I cannot lose sight of the fact that presently consumer awareness is there among the general public and they are in a position to distinguish between the ordinary products and the spurious products. As such, even taking into account the present day common man’s psyche, if I visualise both the products, I am of the considered and firm view that such a common man might tend to think that one and the same firm or company is selling the brandy in different bottles of various sizes with different colourful labels. 21. It is not of context to mention here that one comes across advertisements, which are to the effect that the consumer should be aware of spurious products from that of the original products of the advertisers concerned and it is the consumer who should also be aware of the deceptive materials available in the market and shun them. 22. No doubt, as suggested by the learned counsel for the defendants, in isolation if the product of the plaintiff is compared with the product of the defendants, the defendants bottle cannot be labelled or dubbed or described or portrayed as a simulacrum of the plaintiffs product. 22. No doubt, as suggested by the learned counsel for the defendants, in isolation if the product of the plaintiff is compared with the product of the defendants, the defendants bottle cannot be labelled or dubbed or described or portrayed as a simulacrum of the plaintiffs product. But yet, so far the psyche of the ordinary consumer of the liquor is concerned, as has been highlighted by me supra, he is not very particular about the quality, perhaps he may be very careful and conscious about the quantity and he would not be able to distinguish between the two products if the products are sold in one and the same shop, as correctly pointed out by the learned counsel for the plaintiff. As such, in this view of the matter this case relating to liquor cannot be compared with the case relating to felling of medicine by pharmacist under the prescription of a doctor. Accordingly, I would like to distinguish this case from the earlier case decided, by me relating to medicines. 23. In the earlier case relating to medicines, the Doctors and Pharmacists are responsible for giving the medicine to the public, but In this case, the position is entirely different and in this view of the matter the earlier decision dated 211. 2009 rendered by me in Sun Pharmaceutical Industries Limited v. Cadila Health care Ltd. (supra) case referred to supra Is not applicable to this case. 24. The learned counsel for the plaintiff, has placed reliance on the judgment of the Delhi High Court Induss Food Products Equipments Ltd v. Rani Sati Ice-Cream Pvt. Ltd. (supra), an excerpt from it would run thus: “23. There is one case which I must refer to and consider the effect of it and that is the case Cadila Laboratories Pvt. Ltd., Ahmedabad and Another v. Kamath Atul and Co., Kumta, (1991) PTC 259 by a learned single Judge of the Karnataka High Court. There the High Court had compared the medicinal preparation by Ranbaxy called Terbinol with an Ayurvedic product manufactured under the name Herbinol. After a long discussion on the law and facts the learned Judge of the Karnataka High Court granted injunction in favour of the plaintiff restraining the defendant from marketing their products in the State of Kerala, Karnataka, Tamilnadu, Andhra Pradesh and Maharashtra. After a long discussion on the law and facts the learned Judge of the Karnataka High Court granted injunction in favour of the plaintiff restraining the defendant from marketing their products in the State of Kerala, Karnataka, Tamilnadu, Andhra Pradesh and Maharashtra. In paragraph 18 of the judgment, the learned Judge said: “Therefore, I am of the opinion that the view taken by the learned trial Judge that the plaintiff had made out a prime facie case and even the conclusion reached by the learned Judge that the balance of convenience was also in favour of the plaintiff deserves to be affirmed inasmuch as the plaintiff company is a proprietary concern manufacturing and marketing only one Herbal product called “Hurbinol” whereas, the defendant company is a multi-national company manufacturing several products and therefore, the plaintiff-company would be, hit hard if its interests are not protected by an order of temporary injunction. Therefore, I hold that the impugned order of the learned trial Judge cannot be assailed on the ground that it is manifestly erroneous or unreasonable or perverse.” .24. With great respect I am quite unable to follow the reasoning of the learned Judge. The Courts dealing wit the rights of the parties in a passing off action cannot, in my view, restrict or confine the activities of business under particular trade marks to specified areas. The result would be the expansion of business would be very much jeopardised and the frontiers of the functions cannot be delineated by the Courts. The result would be that there will be products with the same trade mark in different areas and that is not the object of the Act. There may be trade names of long years in various areas and that is a different aspect with which we are not at ail moment concerned.” .He would argue, referring to aforesaid precedent, that area wise “restriction’s something anathema and unknown to passing off action. 25. Whereas, the learned counsel for the defendants, without prejudice to his main contention that there is no passing off at all at the instance of the defendants in selling their product, would develop his argument that area wise restriction in a passing off action is permissible. 26. 25. Whereas, the learned counsel for the defendants, without prejudice to his main contention that there is no passing off at all at the instance of the defendants in selling their product, would develop his argument that area wise restriction in a passing off action is permissible. 26. I would like to point out that so far as the State of Tamil Nadu is concerned, the plaintiff ha not at all stared his business and it is not his case also that he gained reputation by selling his products in the State of Tamil Nadu. Therefore, the question of gaining reputation in selling his product in Tamil Nadu does not arise at all. In passing off action, certainly the reputation of a particular product prevailing in an area also should be taken into consideration. 27. It is quite obvious that the Tamil Nadu Excise Act governs the manufacture and sale of liquor. Admittedly, the Tamil Nadu Government rejected the request of the plaintiff to set up a distillery and also to sell ‘Imperial’s Gold Napoleon Brandy’ in Tasmac shops in Tamil Nadu. It is obvious and axiomatic that liquor is such a product that it cannot be manufactured or sold without the statutory authority’s permission and it cannot also be transported without the such permission from one State to another. .28. However, I could see considerable force, in the argument of the learned counsel for .the plaintiff that in respect of an ordinary item, if it is prevailing widely in particular area in India; naturally, the reputation would get reflected in other areas also and in such a case, in other areas where he has not even expanded his business, if somebody else starts doing business, the business of the plaintiff would be affected. But, liquor business is entirely different. Unless the liquor is tasted by the consumers of an area concerned, they would not be able to recognise it as a good product and it cannot be stated that such a product, which is absent in an area is having good reputation in that area. Even though on the plaintiffs side various decisions have been cited, no decision has been cited touching upon liquor, wherefore, I do not want to adopt the ratiocination adhered to in the decisions cited on the plaintiffs side so as to canvass its case. 29. Even though on the plaintiffs side various decisions have been cited, no decision has been cited touching upon liquor, wherefore, I do not want to adopt the ratiocination adhered to in the decisions cited on the plaintiffs side so as to canvass its case. 29. The term ‘liquor’ by itself would connote and denote that it is not consumed by the general public at large. Only a Section of the general public do consume it and that too, secretly or under some reservations and the State also is reluctantly permitting such manufacture and sale, as it is generally against the Government policy. This Court cannot assume or presume that the plaintiffs product gained reputation in the State of Tamil Nadu simply because the plaintiff is having business in Karnataka, Kerala, Goa, Pondicherry and Himachala Pradesh. Indubitably and unarguably the Brandy is being sold only in State recognised Tasmac shops, in which plaintiffs Brandy is not sold and hence the question of passing off the plaintiffs product does not arise at all in Tamil Nadu. As such, the plaintiff, by way of right, cannot seek Injunction as against the defendants, who have vide G.O. Ms. No.50, Home, Porhibition and Excise (III) Department, dated 27. 2008, started manufacturing and selling ‘Brihan’s Gold Napoleon Brandy’ in Tasmac shops, from selling it. 30. I am having no hesitation in holding that in matters of liquor, which is an excisable commodity, the plaintiff, which is nowhere in the picture in Tamil Nadu, could get injunction. .31. To the risk of repetition without being tautalogous, I would like to reiterate that this ratiocination which I have adopted for refusing to grant injunction so far Tamil Nadu is concerned cannot blindly be applied in regard to the other ordinary products, because, the product liquor by itself is an excisable commodity, controlled statutorily by the State concerned and that the plaintiff is having, in the entire State, no footing at all and his .product also is not sold here. Consequently, the plaintiff cannot get injunction against the defendants in respect of selling the latter’s product in Tamil Nadu. 32. The learned counsel for the plaintiff would raise a question that subsequently, if the plaintiff gets permission from the State Government to manufacture and sell his product, what would happen to his position in the market. Consequently, the plaintiff cannot get injunction against the defendants in respect of selling the latter’s product in Tamil Nadu. 32. The learned counsel for the plaintiff would raise a question that subsequently, if the plaintiff gets permission from the State Government to manufacture and sell his product, what would happen to his position in the market. That could be decided only by taking into account the factual position and the circumstances prevailing at that time. Futurity cannot be visualised now and it is not germane for not granting Injunction so far the State of Tamil Nadu is concerned. 33. In the result, in view of the ratiocination adhered to by me supra, injunction is granted as against the defendants only in respect of the areas where already the plaintiff established his business, namely, Karnataka, Kerala, Goa, Pondicherry and Himachala Pradesh and not in respect of Tamil Nadu, where the defendants are selling their product. To make it clear, the defendants could sell their product ‘Brihan’s Gold Napoleon Brandy’ in Tamil Nadu with the said name, but the defendants are injected from selling their product with the trade mark Brihan’s Gold Napoleon Brandy in the areas, namely, Karnataka, Kerala, Goa, Pondicherry and Himachala Pradesh and in those areas the defendants could sell their product without using the word ‘Gold’ before the word “Napoleon”. 34. Accordingly, this application is ordered. Ordered accordingly.