Judgement

MITTER, J.:- This is an appeal by special leave from a judgment of the Mysore High Court confirming the dismissal of a suit for an injunction restraining the respondent from infringing the registered trade mark of the plaintiffs used on packets of biscuits.

2. The facts are as follows: The plaintiffs-appellants before us are manufacturers of biscuits and confectionary and are owners of certain registered trade marks. One of them is the word "Gluco" used on their half pound biscuit packets. Another registered trade mark of their is a wrapper with its colour scheme, general set up and entire collection of words registered under the Trade Marks Act, 1940 as No. 9184 of 7th December, 1942. This wrapper is used in connection with the sale of their biscuits known as "Parle s Gluco Biscuits" printed on the wrapper. The wrapper is of buff colour and depicts a farm yard with a girl in the center carrying a pail of water and cows and hens around her on the background of a farmyard house and trees. The plaintiffs claim that they have been selling their biscuits on an extensive scale for many years past under the said trade mark which acquired great reputation and goodwill among the members of the public. They claimed to have discovered in March 1961 that the defendants were manufacturing, selling and offering for sale biscuits in a wrapper which according to them was deceptively similar to their registered trade mark. The plaintiffs assert that this act of the defendant constitutes an infringement of their trade mark rights. As in spite of lawyer s notice the defendants persisted in manufacturing, selling and using the wrappers complained of with regard to their biscuits, the plaintiffs filed the suit claiming injunction as already mentioned.

3. The defendants pleaded ignorance of the registrations of the trade marks claimed by the plaintiffs. They denied that the wrapper used by them in connection with the sale of their biscuits was deceptively similar to the plaintiffs trade marks as alleged or that they had in any way infringed the trade mark rights of the plaintiffs. They pleaded further that there was a good deal of difference in the design of their wrapper from that of the plaintiffs and relied on certain features of their designs which were said to be quite dissimilar to those of the plaintiffs wrapper inasmuch as the defendant s wrapper contained the picture of girl supporting with one hand a bundle of hay on her head and carrying a sickle and a bundle of food in the other, the cows and hens being unlike those of the plaintiffs wrappers. There was also said to be difference in the design of the buildings on the two wrappers were distinct and separate.

4. The trail court meticulously examined the features found on the two wrappers and the packets of biscuits produced before it and took the view that there were greater points of dissimilarity than of similarity between the two and as such it was unlikely that the defendants good could be passed off as and for the goods of the plaintiffs. After pointing out the distinguishing features of the wrappers, the trial court concluded that there was no chance of a seller committing fraud on a customer and an ordinary purchaser would certainly refuse to purchase the defendants good if he was offered them as and for the plaintiffs goods. Accordingly the trial court held that the plaintiffs had failed to establish their case.

5. Although the High Court held that in such a case it was not necessary for the plaintiffs to adduce evidence that any particular individual had been deceived by the defendants wrapper and it was undeniable that the general get up of the two wrappers was more or less similar, it went on to observe that the court had to bear in mind that it was dealing with packets of biscuits which were generally used by people of the upper classes, and a purchaser desirous of getting a packet of Parle biscuits would go and ask for the same as such, in which case there could