JUDGMENT :- This is a Miscellaneous Civil Appeal against the order of the District Judge, Panaji, dated 5-7-1972 restraining the Appellant from selling or from dealing in washing soap under the name of "Margao" or "other deceptively similar to it."

2. The respondents filed a suit against the appellant for permanently restraining him from manufacturing and selling the soap named, "Margao" on the ground that the appellant was manufacturing and selling since 1969 a soap for washing clothes in the form of bars bearing the mark "Margao" which had the same flourish and style as the soap "Marao" which was being manufactured by the respondents since the year 1931.

3. Both the soap bars "Marao" and "Margao" were shown to me in Court. One side of the bar is divided by parallel lines along which the soap can be cut into cakes. On each of the divisions formed by these lines the name "Marao" on one of the bars and name "Margao" on the other bar is written. The reverses of the sides of the two bars are however, totally different. Whereas one bears the picture of a plane engraved in it and the words, "Marao Bar Soap" also engraved in bold letters running along the bar, the other one does not bear such name. A bare glance to this side of the soap is enough to see the difference between the two soaps. The colour of the two soaps also varies slightly. It is true that a layman could mistake the "Marao" bar soap for the "Margao" bar soap, but the same layman could also mistake a "Marao" soap with other soaps available. In the market and sold in bars of the same size and colour. A man who knows to read would not easily be led into buying one kind of soap for another.

4. It is argued by Shri Ramanim that even if a common man buys "Top" soap instead of "Marao" soap an action would lie in view of the ruling given by the Madras High Court in AIR 1962 Mad 127, by the Supreme Court in (1972) 1 SCC 618 : (AIR 1972 SC 1359) and by the Andhra Pradesh High Court in AIR 1960 Andh Pra 149. I have gone through these cases, but I do not find much similarity between them and the present one.

5. Shri Mulgaokar on behalf of the appellant argues that the provisions of Section 105 r/w Section 2, clauses (i) and (v) of the Trade Marks Act make it sufficiently clear that this is not a suit for infringement of registered trade mark or a suit relating to any right in a registered trade mark, as in the present case the trade mark of the respondents was not registered. The respondents argue that they have registered their trade mark and they have now produced before me the registration certificate of the trade mark. This certificate shows that the trade mark was registered after the suit was filed. I therefore agree with Shri Mulgaokar that this is a suit for passing off and not a suit for infringement of or in relation to any right. Shri Mulgaokar contends that nothing is said by the Respondents as to the fact that goods of the appellant have been represented and sold as goods of the respondents. Shri Mulgaonkar relies on AIR 1965 SC 980 and AIR 1940 Mad 145. In the first of this case it was held:-

"An action for passing off is a Common Law remedy being in substance an action for deceit, that is, a passing off by a person of his own goods as those of another. But that is not the gist of an action for infringement. The action for infringement is a statutory remedy conferred on the registered proprietor of a registered trade mark for the vindication of "the exclusive right to the use of the trade mark in relation to those goods". The use by the defendant of the trade mark of the plaintiff is not essential in an action for passing off but is the sine qua non in the case of an action for infringement. No doubt, where the evidence in "respect of passing off consists merely of the colourable use of a registered trade mark, the essential features of both the actions might coincide in the sense that what would be a colourable imitation of a trade mark in a passing off action would al

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