Veerendr Singh Siradhana, J.

The appellant/plaintiff has instituted the present appeal assailing the order dated 1st July, 2015, made by the trial Court declining its application under Order 39, Rule 1 & 2 of the Code of Civil Procedure, 1908 (for short "CPC"), for grant of temporary injunction.

2. Briefly, the essential skeletal material facts necessary for appreciation of the controversy raised, are that the appellant/plaintiff is a Company incorporated under the Companies Act, 1956, and is into business of tea manufacturing under the registered trade mark `Maheshwari'. It is pleaded case of the appellant/plaintiff that the respondent/defendant recently started using deceptively similar artistic work/packing material/label/desi gnunder by the name `Vijay Shree', with an intention to encash upon the hard earned goodwill of the appellant/plaintiff. The appellant/plaintiff instituted the suit proceedings for rendition of accounts, damages and permanent injunction for infringement and passing off action of the artistic work/packing material/label of the registered trade mark `Maheshwari' as well as infringement of copyright.

3. Learned Senior Counsel, Mr. R.N. Mathur, assisted by Mr. G.D. Bansal, reiterating the pleaded facts and grounds of the memo of the appeal, emphatically argued that the trial Court committed gross error for it recorded a wrong finding on the issue of registration since the appellant/plaintiff has been accorded registration of Trade Mark Type : Device and Word Mark : `MAHESHWARI AND DEVICE OF CUP AND SAUCER'. The registration has been accorded in response to its Registration Application No.1201204 with reference of Class : 30. It is further contended that conditions and limitations have been incorporated in the backdrop of contemplation under Section 2(za) of the Trade Marks Act, 1999 (for short `the Act of 1999').

4. Learned counsel would further assert that the entire Scheme of the Act of 1999 is made to prevent deceptive similar features in the event of a dispute as to trade mark. According to the learned counsel, in order to arrive at a conclusion whether one trade mark is deceptively similar to another or not? the broad and essential features of the two are to be considered and they should not be placed side by side to find out if there are any differences in the design, and if so, whether they are of such character as to prevent one design from being mistaken for the other. It would be enough if the impugned mark bears such an overall similarity to the registered mark as would be likely to mislead a person usually dealing with one to accept the other if offered to him. (vide R. Gopalakrishnan v. Venkateshwara Camphor Works: A.S. No.301 of 1987 decided on 31st August, 2000 by the High Court of Madras). It is emphasised that while opining as aforesaid, the High Court of Madras relied upon the opinion of the Supreme Court in the case of K.R. Chinna Krishna Chettiar v. Sri Ambal & Co.: AIR 1970 SC 146, observing that even though there is no visual resemblance between the two marks, but the close affinity of sound would establish deception and the majority of customers were not capable of understanding the meaning of the two words.

5. For the trial Court while making the impugned order recorded similarities of the two marks rather than to consider the matter on well recognised principles which have been time and again reiterated to the effect that what is contemplated under Section 29 of the Act of 1999, is whether a registered trade mark is infringed by a person who is not being the registered proprietor uses in the course of trade mark which is identical with or deceptively similar to the trade mark in relation to any goods in respect of which the trade mark is registered and in such manner as to render the use of the mark likely to be taken as being used as a trade mark. In order to fortify his submissions, reliance has been place on the opinion of this Court in the case of Navyug Commercial v. Mah