The overall similarity between two trade marks, taking into account common features and the mala fide intention of the defendant, can establish deceptive similarity and infringement of a registered trade mark.

ABDUL HADI, J. :- These two appeals, O.S.A. Nos. 134 of 1990 and 135 of 1990 by the defendant, (who is common in both suits) arise out of the common order dated 24-7-1990 in two interlocutory applications in two different suits. The suits are respectively C. S. No. 478 of 1990 and C. S. No. 477 of 1990 and the respective applications are Application No. 2557 of 1990 and Application No. 2554 of 1990. For convenience sake parties are referred to by their ranks in the suit.

Both the defendant-appellant and the plaintiff-respondent are well established cigarette manufacturers and both these suits are trade mark actions for infringement and passing off. While C. S. No. 477 of 1990 is with reference to plain cigarettes, C. S. No. 478 of 1990 is with reference to filter cigarettes. The infringement and passing off, alleged in both the suits are with reference to what the plaintiff calls as a "slightly" modified forms of the plaintiff's registered trade mark T. M. No. 110438 dated 21-5-1945 in relation to the plaintiff's Wills Fold Flake cigarettes as against the respective trade marks which the defendant recently introduced in respect of its Gold on Gold Flake cigarettes. No doubt, the above said plaintiff's registered trade mark itself is a modified version of its preceding registered trade mark bearing No. 7678 dated 11-11-1942. Though the prayer in the above said applications is in relation to both the said registered marks, the argument before us centred round only in relation to the above said modified trade mark, bearing No. 110438 dated 21-5-1945, and, therefore, our reference to plaintiff's registered trade mark hereinafter relates only to the said mark of 1945 and its two respective 'slightly' modified forms.

2. Both the above said applications seek for interim injunction restraining the defendant from using its relevant impugned trade marks. The registration of the above said plaintiff's trade mark was admittedly without imitation of colour and under S. 10(2) of the Trade and Merchandise Marks Act, 1948 (hereinafter referred to as 'the Act'), it shall be, therefore, deemed to be registered for all colours. Application No. 2554 of 1990 prays for interim injunction restraining the defendant from using the impugned trade mark shown in Annexure 'D' appended to the said applications, namely, the trade mark with rounded design, the interesting rectangle bearing the word 'Gold Flake', the three stars, the colour scheme of yellow back ground and rectangular border lines in red in tarnished gold or any other mark deceptively similar to the plaintiff's registered trade mark or to pass off its goods as and for the goods of the plaintiff, pending disposal of the said suit. Application No. 2557 of 1990 is for an interim injunction restraining the defendant from using the impugned trade mark shown in Annexure 'D' appended to the said application, namely the trade mark with the rounded design, the words 'Gold Flake' in rectangular shape intersecting the rounded three stars, the colour scheme of wide red band on top and yellow below or any other mark deceptively similar to the plaintiffs registered trade mark or to pass off its goods as and for the goods of the plaintiff, pending disposal of the said suit.

3. According to the affidavits in both the applications, the most distinctive features of the plaintiffs trade mark is the design thereof, the roundel design with the intersecting rectangle with the words 'Gold Flake' written across, the presence of three stars, the colour scheme and the rectangular border lines in strips of red and tarnished gold. In application No. 2554 of 1990, the specific allegations are that in February, 1990, plaintiff came to know that the defendant has been selling and offering for sale PLAIN cigarettes in packets bearing a trade mark which is colourable imitation of and deceptively similar to the plaintiffs registered trade mark, that the defendant has copied the roundel design, including the intersecting