The main legal point established in the judgment is that in a passing off action, the likelihood of confusion or deception must be considered in relation to the nature of goods, trade name, class of purchasers, and word marks and label marks.

SUDHIR NARAIN, J.

( 1 ) THIS is a defendants appeal against the order passed by the court below restraining the appellant from infringing in the plaintiffs registered trade mark bearing registration Nos. 417443, 453959 and 453009 in respect of parag and further restraining it from using such mark.

( 2 ) THE plaintiff-respondent filed suit against the appellant for permanent injunction restraining It from infringing the plaintiffs trade mark and for passing off its goods under the trade mark, parag as the goods of the plaintiff with the allegations that the respondent company is manufacturing and selling pan masala and mouth freshener like Sada Pan Masala. Gutkha and chewing tobacco. The trade mark parag is registered under the registration No. 417443 dated 10. 2. 1984 and pan parag is registered on 12. 5. 1986 bearing registration No. 453959 and pan masala with zarda bearing registration No. 453009. It has further applied for registration in the name of trade mark pan masala mawa. The appellant is alleged to have started selling tea from the month of December, 2000, using plaintiffs trade mark parag as its prefix. The allegation is that the goods of the appellant is likely to mislead the purchasers as the goods of the respondent company by ordinary purchaser of average memory, semi-literate and village folks and thus appellant is infringing the trade mark and damaging Its reputation. It filed an application for interim injunction which the court below has allowed ex parte by the impugned order.

( 3 ) AS the order was passed ex parte, the appellant filed objection. The parties have already submitted their affidavits before the court below. The learned counsel for the parties made statement before this Court that instead of remanding the matter, the propriety of the grant of temporary injunction may be considered by this Court on the affidavits which they have filed in this Court.

( 4 ) THE objection of the appellant is that it is not manufacturing pan masata or any of the Items manufactured by the respondent company. It is selling tea with the trade name parag chai and the wrappers used by it are totally different in size, shape and colour and they are not deceptively similar to the respondents trade mark.

( 5 ) THE suit is based on "passing off action. The expression "passing off" has not been defined under the Trade and Merchandise Marks Act. 1958 (in short the act ). The concept of passing off action is based on common law. It is a form of tort. This has come to this country from england. There were two enactments relating to the trademarks, (1) The Indian Merchandise marks Act, 1889, and (2) Trade Marks Act, 1940. In the year 1958, the Trade and Merchandise marks Act came into force and earlier two enactments were repealed by Section 136 of the Act.

( 6 ) SUB-SECTION (1) of Section 27 of the Act, 1958, provides that no person shall be entitled to institute any proceeding to prevent or recover damages for infringement of unregistered trademark. Sub-section (2) is an exception to Sub-section (1), which specifically provides that nothing in the Act shall be deemed to affect rights of action against any person for passing off goods as goods of another person or the remedies in respect thereof.

( 7 ) SECTION 105 of the Act specifies remedies available to a person in respect of infringement of registered trade mark and also for passing off arising out of the use by the defendant of any trade mark which is identical with or deceptively similar to the plaintiffs trade mark whether registered or unregistered Section 105 of the Act reads as under :

"105. Suit Jor infringement, etc. , to be instituted before District Court.--No suit- (a) for the infringement of registered trademark ; or (b) relating to any right in a registered trademark ; or (c) for passing off arising out of the use by the defendant of any trade mark which is identical with or deceptively similar to the plaintiffs trade mark, whether registered or unregistered; shall