M. Jagannadha Rao, J.

( 1 ) THIS is an appeal arising out of an order partially refusing temporary injunction in favour of the appellant-plaintiff in a "passing-off" action. The appellant manufactures and sells threads and their application for registration of trade mark "moon" and device of, a moon are admittedly pending before the Registrar of Trade Marks. The respondents-defendants also manufacture thread and are selling under the mark "moor".

( 2 ) THE learned Single Judge allowed the appellant s application for injunction partially in the following terms:-

". . . I pass an ad interim order re-straining the defendant from using the word "moor" in the manner it has done till today and this, of course, would include the style of its lettering, "its colour scheme and general get-up".

( 3 ) THE appellant-plaintiff has come up in appeal contending (in para 2 of the memorandum) that while the learned Single Judge rightly granted the above relief, he "failed to grant relief in respect of use of the word "moor" and in respect of the device of a moon which is actually in use by the respondents. In effect, it is contended that no relief was granted in favour of the appellant, as the. respondents could still continue using the offending carton with the trade mark "moor", which formed the cause of action for the entire suit". Circumstances changed after the appeal was filed. In their reply dated 20. 5. 1996 filed in this appeal, the respondents-defendants stated that

"the respondents have changed the style of lettering, the colour scheme and general get-up of the word "moor", A copy of the same is annexed hereto. "

( 4 ) NOW the get up is changed and the words are letters as "moor" in a slanting fashion and in brown colour.

( 5 ) THE appeal was argued by the learned counsel on the basis of the altered circumstances.

( 6 ) AT the outset, we may take care to say that of one views the case just on the basis of the appellant s contention regarding "moon" and "moor", one is apt to conclude that there is clear passing off. But one has only to see the cartons, as they stand today broadly for an overall picture, particularly in the light of the altered style of lettering of the word "moor", now written as "moor" slantingly and no brown colour. In the new carton of respondents what is now more prominent is the word in capital letters "farishta", and below the same we have the baby angel inside a big moon. On the other hand, the appellant s carton contains the words "100% spun polyester" at the top above the moon at the place where the respondents have the word "farishta". The moon of the appellant below the said band is smaller in size with two clouds floating across it, while the moon of the respondents below the word "farishta" is bigger in size with the picture of a baby angel, with wings, inscribed inside the moon. While below the appellant s moon, we have the words in Hindi , - we have in the respondents carton, the words written in a slanting fashion as "moor" in brown colour and below those words is the band "100% spun polyester". There are no Hindi words in the respondents carton. The sides of the respondents carton describe. Secure (ship) with rope" and respondents contend that the word "moor" in Hindi means a rope which is used for securing ships and that the idea is that their threads are as strong as these ropes.

( 7 ) LEARNED counsel for the parties have referred to various rulings in support of their submissions.

( 8 ) THIS is a passing-off action. For the purpose of this case we would like to point out the distinction between "passing-off" actions, and "infringement" actions. This distinction we arc compelled to point out because the learned counsel for the plaintiff-appellant has relied upon several rulings of the Supreme Court and other courts which concern infringement actions and the element of "confusion" in the minds of the consumer.

( 9 ) THE leading case in which the distinction between passing-off actions and the infri

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