M. Jagannadha Rao, C. J.

( 1 ) THIS is an appeal by the plaintiff, Kellogg Company against the order of the learned Single Judge in IA 2094/94 in Suit 432/94 dated 31. 10. 95. By that order, the learned Single Judge dismissed the application of the appellant for grant of temporary injunction under Order 39 Rule I Civil Procedure Code against the respondent. The dispute pertains to trade-mark, emphasis being on trade-dress. Though reference is made in the grounds of appeal to the carton being a piece of artistic work within Section 2 (c) of the Copyright Act, arguments were mainly focussed on trade dress .

( 2 ) THE appellant Kelloggs Company sells Corn Flakes with cartons which describe the cartons as Kellogg s CORN FLAKES (the original and the best ). The respondent is selling corn flakes using a carton more or less similar in size In with the title "aims ARISTO CORN FLAKES" written just at the place where appellant s display the words kellogg s CORN FLAKES . This is done at the the hand top of the carton. The appellants grievance in the suit as well as in the IA was that the carton was likely to confuse the buyers of corn-flakes and there was every likelihood of consumers purchasing the respondent s goods in the belief that they were of the appellant. The learned Single Judge after referring to the case-law pertaining to trade dress , of the appellant dismissed the IA observing:

"if the trade dress in this case is as was found in the above case (i. e. Colgate Palmolive Ltd. and Ors. vs. K. F. Pattron 1978 (RPL 635), I would have had no hesitation to accept the arguments of Mr. Anand. Applying the test laid down therein, I am of the view that the trade dress of the defendant in this case is entirely. . . different from the trade dress of the plaintiff and there is absolutely no scope for any confusion. "

( 3 ) ON that basis, the learned Judge stated that the appellant had not proved prima facie case nor balance of convenience and hence no injunction could be granted.

( 4 ) IN this appeal, we have heard learned counsel for the appellant at the stage of admission. Learned counsel for the defendant was also present.

( 5 ) IT was contended before us that the learned Single Judge, having accepted the legal principles relied upon for the appellant in respect of trade dress erred, on facts, in holding that there was no scope for confusion among the consumers. It was pointed that the size and shape of the carton was similar being rectangular, that in the words flakes in the appellant s carton the words LAND A were joined together closely or rather touch each other, that respondent also described his goods as original and the best , that both contain a picture of the corn flakes, that there was a small square on the left hand top where the words "kellogg s CORN FLAKES were written inside the square, and that the respondent had also put a square on the left hand top with the words aims ARISTO CORN FLAKES . It was further stated that in all the cartons of Kellogg s in regard to various commodities, there was a red-band at the top which took off from the square on the left top and ran horizontally across on the front top into the right and to the other sides and respondent also used a similar red band taking off horizontally from the square on the left top. It was also argued that even in regard to the square on the left side top, Kellogg s used an inner red border, then a white gap, and then an outer green border, running all along the sides of the quare while respondent was also using the same red and green borders for the square on the left top. It. was argued that these similarties in dress were so clear that purchasers were sure to be misled. It was submitted that there was a presumption that the consumer s memory was short and if a consumer had purchased a carton of appellant s at one point of time, he would easily mistake the respondent s carton for the appellant s. It was further submitted that respondent had done this w

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