1. Defendants 1,3,4 and 6 in O.S.No.1/01 before the District Court, Trissur, are the appellants. The suit was one based on passing off action. The parties and facts are hereinafter referred to as they are available before the Trial Court.

2. According to the plaintiffs, the first plaintiff firm is engaged in the manufacture of flooring tiles, decorative tiles, pottery items etc. since 24.2.1992. They sell their products under the brand name “Kathakali” and Kathakali emblem is engrossed on their products. According to the plaintiffs, they have considerable reputation in the market and a goodwill among the customers. They claim that they alone are entitled to use the brand name “Kathakali” with the emblem engrossed on the product. The allegation in the plaint is that the plaintiff’s came to know that the defendants are also using the same trade name and mark and selling the same products as the first plaintiff firm does. According to the plaintiffs the brand name and the mark adopted by the defendants are deceptively similar to the brand name and emblem used by the plaintiffs. The plaintiffs say that they have applied for registration of the trademark and the application is pending. The differences if at all between the brand name and the emblem of the defendants and the plaintiffs are negligible. The plaintiffs would allege that the product manufactured by the defendants is of an inferior quality and the brand name and emblem of the plaintiffs’ firm has been adopted by the defendants to sell their goods as if they are the products of the plaintiffs. The plaintiffs have suffered loss to the tune of `25,000/-. On the basis of these contentions, the suit was laid for injunction.

3. The defendants resisted the suit. They disputed the claim of the plaintiffs that they are manufacturing products under the brand name “Kathakali” from 1992 onwards. Almost all the allegations in the plaint were specifically disputed. Added to this, they also contended that “Kathakali” is not capable of being adopted as a brand name and the plaintiffs cannot have exclusive use of the said word. They also contended that the products of the defendants and plaintiffs are easily distinguishable and the brand name and emblem do not cause any confusion in the minds of the customers. They also pointed out that their products are of a different quality and in the nature of the business, normally, the purchases are made by contractors or masons, who have knowledge about the product and therefore, there cannot be any confusion regarding the product that is being sold. They also claim that their products are of high quality and are in considerable demand. According to them, they have not done any act which would cause any injury to the plaintiffs and that the plaintiffs are not entitled to any reliefs.

4. On the above pleadings, issues were raised by the trial court. The evidence consists of the testimony of PWs 1 to 4 and Exts.A1 to A17 from the side of the plaintiffs. The defendants had DWs 1 and 2 examined and Exts.B1 to B14 marked. Ext.C1 is the Commissioners report. MO1 to 11 are the material objects marked in the case.

5. On an analysis of the evidence in the case, the trial court came to the conclusion that the brand name and the emblem adopted by the defendants is deceptively similar to the one that is used by the plaintiffs and the plaintiffs being the prior user in point of time, are entitled to the reliefs sought for in the plaint. Accordingly, the suit was decreed. The said judgment and decree are assailed in this appeal.

6. The only question that arises for consideration in this appeal is whether the finding of the court below that the defendants are guilty of passing off is justified or not.

7. The learned counsel for the appellants pointed out that the court below has not adverted to the necessary ingredients to constitute the mischief of passing off. Apart from the said fact, the word “Kathakali” could not be adopted as a brand name.