The principles applicable in England would not always be applicable in India, and the test to be applied in passing-off actions is whether there is likelihood of deception or causing confusion.

Surinder Singh Nijjar, CJ.: Euro-Solo Energy Systems Limited have filed this Letters Patent Appeal challenging the order of the learned Single Judge dated 22.5.2009 by which the learned Single Judge has extended the earlier interim orders granted on May 4 and 6, 2009.

2. The appellant and the respondent are both manufacturers of dry-cell batteries. The appellant produces batteries under a trade name 'Eurocell' whereas the respondent sells its product under the trade name 'Eveready'. Both the• appellant and the respondent have the aforesaid two names as their registered trade marks.

3. The respondent, Eveready Industries Limited, have filed a civil suit on May 4, 2009 being C.S. No.124 of 2009 alleging, inter alia, that the appellant is infringing the respondent's 'trade dress' and/or trade mark. In connection with the aforesaid suit, the respondent also filed an interlocutory application. By order dated May 4, 2009 an ex parte ad interim order in terms of prayer 'e' of the Notice of Motion was granted. By the aforesaid order the appellant has been restrained from selling dry cells, batteries and allied products in any label and/or packaging, bearing the respondent's 'trade dresses' or any of them as shown, in annexures "B', 'B1', 'F' and 'I’,. The appellant came to know of the aforesaid order on May 6, 2009, although it was served on 8th May, 2009. A further order dated 6th May, 2009 was served on the appellant on 11th May, 2009. By order dated 6th May, 2009, the ad interim injunction was extended to Annexures 'G' and 'R'. By order dated 4th May, 2009, the matter was made returnable on 14th May, 2009, and the interim order was to continue till 18th May, 2009. When the matter came up for hearing on 22nd May, 2009, a prayer was made by the respondent (plaintiff) for extension of the interim order and directions for filing affidavits. Learned Counsel for the appellant prayed for vacating of the interim order.

4. After hearing lengthy arguments and taking into consideration the entire matter, necessary directions have been given for filing affidavits. The matter has been directed to appear in the List of August, 2009. This appeal has been filed by the appellant on the ground that it is extremely urgent as the interim injunction order needs to be vacated. The sale of the appellant's batteries has been totally stopped and its factory is facing closure. The jobs of 600 workers are in peril.

5. We have heard the learned Counsel for the parties at length. Mr. Anindya Mitra and S. N. Mukherjee, learned Senior Counsel for the appellant, have submitted that the suit filed by the respondent is mala fide, vexatious and harassive. It has been filed with ulterior purpose to harm the appellant. As a consequence of the interim order the appellant is suffering undue hardship, prejudice and loss. The respondent had failed to make out a prima facie case in the petition for passing the orders dated May 4 and 6, 2009. The respondent has also failed to give any particulars with regard to any infringement of its trade mark or passing-off. The respondent is seeking a monopoly on the, colour red. The registration of the petitioner is in the words "Eveready", "Give me Red" and "Eveready 100". It is not registered in the colour combination red and silver and blue and silver. As there is no registration of colour combination, the right to exclusive user of the said colours cannot be availed by the petitioner.

6. Learned Senior Counsel for the, appellant further submit that a manufacturer cannot be held responsible for any acts of the shopkeeper/distributor as the manufacturer in this case is not involved in direct sales to the retail customer. Manufacturer cannot be held responsible for any fraud committed by the shopkeeper upon its customers. The sales are affected through distributors and a network of shopkeeper. According to the learned Counsel, the findings of the learned Single Judge are contrary to the well settled law. In support of their submiss