The main legal principle established in the judgment is the determination of trade mark infringement based on the visual and phonetic resemblance of the marks, the nature of the goods, and the likelihood of deception or confusion among customers.

1. The principal question in this case is whether it is permissible for the defendant to use the name of Bismilla' as the trade name in reference to his goods although the plaintiff-firm in reference to similar goods is already using the trade mark 'Bismi'.

2. Parties to this appeal are a registered firm and a businessman who does business mainly in ball point pens and fountain pens and allied articles. The court below has passed a decree prohibiting the defendant from marketing any goods under the mark Bismilla or any other mark similar or deceptively similar to the plaintiffs trade mark Bismi, It also declared that the mark Bismilla used by the defendant is an offending mark deceptively similar to the plaintiffs registered trade mark Bismi. Further, the court declared that the plaintiff is entitled to realise damages from the defendant on account of his selling products manufactured in the name Bismilla. The court directed assessment of the quantum of damages to be made in the final decree proceedings. Defendant challenges this decree in this appeal. These are the facts:

3. Plaintiff is the proprietor and owner of a registered trade mark Bismi. The trade mark was registered on 6th July, 1965. The number of the trade mark is 229921. Plaintiff got the trade mark transferred in his name under a certificate issued on 26-7-1975 by the Assistant Registrar of Trade Marks, Bombay. Plaintiff was/ is marketing his goods, fountain pens, ball point pens and allied articles in the registered trade mark Bismi. Plaintiff claims that by virtue of the said registration as well as by long established user and wide publicity, plaintiff has acquired exclusive right to the use of the trade mark Bismi particularly in relation to the sale of fountain pens, ball point pens, pencils, writing inks and other similar materials.

4. Plaintiffs case is that the defendant is infringing plaintiffs trade mark by using the mark, the name Bismilla, which is a colourable imitation of plaintiffs trade mark 'Bismi', which is deceptively similar and/or confusingly similar to the plaintiffs trade mark both phonetically and visually. Defendant has deliberately used the mark 'Bismilla' in order to deceive the public and to give an impression to the public that the goods sold by him are goods marketed by the plaintiff in the trade mark Bismi. Certainly, this scheme of the defendant will injuriously affect the good will and reputation established by the plaintiff and it will cause loss to him. This, according to the plaintiff, is an infringement of plaintiffs trade mark within the meaning of S.28 of the Trade and Merchandise Marks Act, 1958. Plaintiff came to know that the defendant has been doing this clandestine business ever since 1979 and he has marketed a large number of fountain pens, ball point pens and refills. In these circumstances, plaintiff approached the court below for the reliefs claimed in the plaint.

5. Defendant contended that the plaintiff has no cause of action against him. He has got every right to sell his goods in the name Bismilla. This name is not deceptively similar or confusingly similar to the plaintiffs trade mark Bismi, both phonetically and visually. Defendant has also raised some ancillary contentions in his written statement. Defendant submitted that the plaintiff is not entitled to any amount as damages and at any rate an amount of Rs.5,000/- as claimed in the plaint. He prayed that the suit may be dismissed with his costs. After a detailed consideration of the facts and circumstances and the law applicable to the case, the court below passed a decree, the substance of which I have referred to in Para.2 of the judgment. Now, the defendant is aggrieved. He appeals.

6. I have given only, a summary of the facts and a skeleton history of the case. From the summary of the facts, the core of the principal question that has to be considered is whether the use of the word Bismilla by the defendant for marketing his goods would infringe