JUDGMENT : 1. Heard. 2. ADMIT. 3. This is an appeal from order of the District Judge-7, Nagpur dismissing the application below Exh.5 filed by appellants restraining respondent from using and selling their goods “Ontime Bidi” on the identical and deceptively similar brand name of appellants. 4. The appellants are Bidi manufacturers and proprietors of Trade Mark “Online” registered under the Trade Marks Act, 1999. The appellants have been manufacturing Bidi since 2005, and one of the marks used by the appellants is "Online Bidi". On 31.08.2017, the appellants applied for registration of the aforesaid Trade Mark under the Trade Marks Act, 1999. On 04.01.2020, the Registrar of the Trade Mark registered the Trade Mark "Online Bidi" after conducting the statutory enquiry. 5. Respondent is also a manufacturer of Bidi and started using Trade Mark "Ontime" on its wrapper with an identical colour scheme as that of the appellants. On 09.06.2021, appellants filed Trade Mark Suit No.5/2021 in the Court of District Judge, Nagpur. Along with the said suit, appellants applied under Order 39 Rule 1 and 2 of the Code of Civil Procedure, seeking a temporary injunction against the respondent, his agents, servants, and relatives from using and selling the Bidi in the name of "Ontime Bidi". 6. Respondent, by reply, denied the contentions raised in the application for temporary injunction. First, it is contended that the name and packaging of the defendant's branding, "Ontime Bidi" is not identical to the Trade Mark of the plaintiffs. It is contended that plaintiffs had approached him and called upon him to change the packaging. Therefore, to avoid any legal battle and to buy peace, the respondent made some changes to the packaging material of his product. Finally, it is contended that there are no visual, phonetic or structural similarities and, therefore, prayed for rejection of the application. 7. The Trial Court rejected the application for a temporary injunction, holding that the products of the parties are not visual, phonetic and deceptively similar to each other. 8. The main bone of the contentions between the parties before me is whether the respondent's mark is deceptively similar to the appellant's mark. To adjudicate this issue, it would be appropriate to recapitulate some well-established principles. 9. In James Chadwick & Bros. 8. The main bone of the contentions between the parties before me is whether the respondent's mark is deceptively similar to the appellant's mark. To adjudicate this issue, it would be appropriate to recapitulate some well-established principles. 9. In James Chadwick & Bros. Ltd. vs. The National Sewing Thread Co., reported in AIR (38) 1951 Bombay 147, the Division Bench of this Court held that what is important is to find out what is an essential feature of the trade mark already registered and what is the main feature or idea under-lying such trade mark, and ascertain if the trade mark whose registered contains the same distinguishing or essential feature or conveys the same idea. The relevant question to be asked is, what would be the salient feature of the trade mark which would lead the purchaser to associate the particular goods with that trade mark? 10. In Corn Products Refining Co. vs. Shangrila Food Products Ltd. reported in AIR 1960 SC 142 , it was held that "Glucovita" and "Gluvita" were deceptively similar while observing that in deciding question of similarities between two marks. The approach must be from the point of view of a man of average knowledge and imperfect recollection. To such a person, the overall structural and phonetic similarity and the similarity of the idea in the two marks are reasonably likely to cause confusion between them. 11. In Amritdhara Pharmacy Vs. Satya Deo Gupta reported in AIR 1963 SC 449 that the Hon'ble Apex Court considered overall structural and phonetic similarity between two names, "Amritdhara" and "Lakshmandhara", which was likely to cause confusion for unwary purchaser of average intelligence and imperfect recollection. It was held that if a person is put in wonderment, it is sufficient to hold that mark is likely to deceive or confuse. 12. In F. Hoffimann-La Roche & Co. Ltd. vs. Geoffrey Manners & Co. Private Ltd. reported in AIR 1970 SC 2062 , the Hon’ble Apex Court has held that marks must be compared as a whole. The true test is whether the totality of the trade mark is such that it is likely to cause deception, confusion, or mistakes in the minds of the persons accustomed to the existing trade mark. It is held that microscopic examination is not necessary. Both tests, visually and phonetic, must be applied. 13. In Parle Products (P) Ltd. Vs. The true test is whether the totality of the trade mark is such that it is likely to cause deception, confusion, or mistakes in the minds of the persons accustomed to the existing trade mark. It is held that microscopic examination is not necessary. Both tests, visually and phonetic, must be applied. 13. In Parle Products (P) Ltd. Vs. J.P. and Co., Mysore reported in AIR 1972 SC 1359 that the Hon'ble Apex Court has held that what must be considered are the broad and essential features of two trademarks, which should be placed side by side in order to find out any differences in design. It is enough if the impugned trade mark bears such an overall similarity to the registered mark as it would be likely to mislead a person usually dealing with one, to accept the other if offered to him. Each case must be judged on its own features, and it would be of no use to note how many points there were in similarity and how many others there were in the absence of it. 14. The Hon'ble Apex Court, in a recent judgment in the case of Renaissance Hotel Holdings Inc. Vs. B. Vijaya Sai And Ors. reported in (2022) 5 SCC 1 has held that in action for infringement, once it is found that the defendant’s trade mark was identical with the plaintiff’s registered trade mark, the Court could not have gone into an enquiry whether the infringement is such as is likely to deceive or cause confusion. In an infringement action, an injunction would be issued as soon as it is proved that the defendant is improperly using the trade mark of the plaintiffs. It is held that the question to be asked in an infringement action is as to whether the defendant is using a mark which is the same as or which is a colourable imitation of the plaintiff's registered trade mark. It is held that though the get-up of the defendant's goods may be so different from the plaintiff's goods and the prices may also be so different that there would be no probability of deception of the public, nevertheless, even in such cases, i.e. in an infringement action, an injunction would be issued as soon as it is proved that the defendant is improperly using the plaintiff's mark. It is not necessary to prove actual deception or any actual damage. 15. In the light of principles of law established in the aforesaid judgments, it is necessary to consider essential features of marks in the present case. 16. Appellant's mark comprises of i] word "Online Bidi" in English at the top centre against a blue background; ii] under "Online Bidi" there are scrolls Bidies in green colour; iii] on the left of “Online Bidi” “ ,d d’k rktxh dk ” is written in Devnagari Script; iv] underneath and in the centre of the table is the bust of a man; v] a thick blue band runs across the bottom of a label having words "Online Bidi, Made from the best quality tobacco". 17. Coming to the respondent’s marks, it comprises of i] word "Ontime Bidi" in English at the top centre against blue background; ii] at the top of mark ^^le; ds lkFk pyks---^^ words are written in Devnagari Script; iii] underneath and at the centre of the table, picture of Bidies in green colour is printed in the blue background; iv] faint blue band running across the bottom of a label having words "Ontime Bidi, Made from the Best Quality Tobacco". 18. On close scrutiny of marks placed side by side based on well-established principles, the question that arises for consideration is what would be the effect on the mind of a person of average intelligence and imperfect recollection? Applying the test with well-established principles summarized in an earlier paragraphs, there can be no manner of doubt that the respondent's label/mark is deceptively similar to the appellant's mark. It would be highly improbable to expect an ordinary person of average intelligence and imperfect recollection to recall the exact nature and features of the appellant's mark before being led into confusion with the respondent's mark and consequently purchasing the respondent's bidies in the belief that he was purchasing appellant's bidies. It is a well-settled principle of law that the duties of the Court are not to compare two marks as they were side by side, with a view to finding out if there are differences or dissimilarities. It is a well-settled principle of law that the duties of the Court are not to compare two marks as they were side by side, with a view to finding out if there are differences or dissimilarities. What is essential is whether ordinary purchasers going about their normal affairs would be liable to be deceived into believing that the bidies he purchased on the shelf of a shop, not under a microscope or upon careful evaluation, is a product of appellants. Apart from using the word "Ontime Bidi" instead of "Online Bidi", the features would lead purchasers to associate the appellants' product with the respondent's brand. The scroll of green colour bidies at the centre of the mark in green colour. The background of the mark where words “Online Bidi” are used by the appellants whereas in the respondent's mark the words used as "Ontime Bidi". In view of the well-settled position in law that the Court must have regard for all the surrounding circumstances and the overall similarities of the two marks, there can be no doubt whatsoever that the product of the respondent, prima facie, is deceptively similar to that of appellants and is likely to cause confusion and deception. 19. The phonetic similarity between "Online Bidi" on the one hand and "Ontime Bidi" on the other is strikingly similar. The two marks are phonetically, visually and structurally similar. Phonetic similarity constitutes an important factor to ascertain as to whether the mark bears deceptive or misleading similarity to another. The phonetic structure indicates how rival mark sounds. The overall impact in terms of phonetic use is strikingly similar. The phonetic, visual and structural get-up of two words is so structurally the similar that it would lead to the likelihood of deception. The respondent has no bonafide and logical explanation for adopting such a mark. This is not a case where it can be said that there is the bonafide, honest and concurrent use of the mark by the defendant. 20. The test of phonetic similarity was accepted in the judgment of the Hon’ble Apex Court in the case of Amritdhara Pharmacy (supra). This principle is reiterated in the judgment of the Hon’ble Apex Court in the case of Cadila Health Care Ltd Vs. Cadila Pharmaceuticals Ltd. reported in (2001) 5 SCC 73 . 20. The test of phonetic similarity was accepted in the judgment of the Hon’ble Apex Court in the case of Amritdhara Pharmacy (supra). This principle is reiterated in the judgment of the Hon’ble Apex Court in the case of Cadila Health Care Ltd Vs. Cadila Pharmaceuticals Ltd. reported in (2001) 5 SCC 73 . The three judges bench of the Hon’ble Apex Court in Cadila Health Care (supra) has held that the principle of phonetic similarity is to be jettisoned when the manner in which the words are written. However, the Court held that in both Amritdhara Pharmacy (supra) and Kaviraj Pandit Durga Dutt Sharma vs. Navaratna Pharmaceutical Laboratories, ( AIR 1965 SC 980 ), the relevancy test of phonetic similarity is relevant. 21. In these circumstances, the order passed by the Trial Court cannot be sustained. Appellants have established a prima facie case for grant of injunction. The essential requirement in action for infringement that the defendant's trade mark is identical to the plaintiff's trade mark has been established. The balance of convenience lies in favour of appellants. I do not see any reason as to why the injunction should not be denied to a party if a clear case of infringement of a registered trade mark is made out. 22. In the result and in view of forgoing discussions, the appeal deserves to be allowed. 23. Hence, I pass the following order. ORDER i] Appeal is allowed. ii] The impugned judgment and order below Exh.5 by the District Judge -7, Nagpur dated 28.02.2022 in Trade Mark Suit No.5/2021 is quashed and set aside. iii] Application below Exh.5 is allowed in terms of prayer clause -(i). iv] Since there was no ad interim relief during the pendency of the application and during the pendency of the present appeal, the effect, operation and execution of the present order is stayed for four weeks. v] During the period of four weeks, the respondent shall maintain accounts of the sale of products described on page 52 of the Appeal Memo. vi] The accounts for the sale of goods shall be submitted to the Trial Court after a period of four weeks. 24. The appeal is disposed of accordingly. No order as to costs.