The use of a trade mark which is deceptively similar to another trade mark is likely to pass off the goods of the former as those of the latter and is actionable.

M. L. Bhatt, J. - Ancillary to the suit filed by the plaintiff restraining the defendants from infringing the plaintiff-company's copyright and from using their Trade mark 'MMB' and for some other reliefs, plaintiff has prayed for ad-interim injunction against the defendants to the effect that pending disposal of this suit, the defendants should not use the Trade mark 'MBB' on their whisky bottles of various sizes. The plaintiffs are using the trade mark 'MMB' on one of the varieties of their whisky bottles. The defendants have with a view to deceive the public labelled their whisky bottles with the trade mark 'MBB' and the purchasers are made to believe that the whisky bottles sold by the defendants are the same which are manufactured by the plaintiff under the trade mark 'MMB'. As an exhibit plaintiffs have produced their own whisky bottles of different sizes with 'MMB' Label, and those of the defendants with 'MBB' mark. The bigger size is 750 ml when filled. Then there are half size bottles which are 375 ml. and there is another size which contains 1/4th of a bigger size.

2. In order to appreciate the controversy the labels which are fixed on the plaintiffs whisky bottles has a mark in the following manner :

"MMB (in black and red) below it. Whisky (in red)

Thereunder place of its bottling and blending office etc. is written."

On the whisky bottles which are prepared by the defendants the labels are in the following manner :

"MBB (in black and red) Whisky (in red)

Thereunder the place of distilling and bottling is mentioned."

Plaintiffs blend and bottle their whisky in question under the name and style of 'Mohan Meakin Breweries Ltd.' which has its registered office at Solan. Defendants distill and bottle their whisky under the name and style of 'Kashmir Dreamland Distilleries' Srinagar-Kmr. On the said bottles of the defendants 25 with a knot on the right side of 5 with words UP is written on the top of the label opposite the words 750 ml. In the whisky bottles distilled by the plaintiff 25. UP is written below the words 'Whisky' on right side and on the left side 750 ml is written. Same is the position with regard to the bottles of smaller size.

3. During the trial of this suit plaintiffs got their copyright registered and their copyright is, as earlier stated, 'MMB Whisky'.

4. Mr. Chadda appearing for the plaintiffs has submitted that the defendants are contravening the Copyright Act as also Trade and Merchandise Marks Act, 1958. It is contended that the Trade mark used by the petitioners in the kind of whisky which is in dispute and that used by the defendants has similarity and is apt to deceive a purchaser. The defendants are passing off their goods with a view to deceive public and the public is led to believe that the whisky bottles distilled and bottled by the defendants are that of the plaintiff's company. It is contended that the whisky bottles labelled by the defendants are so similar in their labels, packing, get up etc. that they are bound to cause confusion in the minds of the purchaser and deceive him on first impression. The visual and phonetic similarity of plaintiff's bottles and defendants bottles are sure to deceive a man of imperfect collection or a man of average intelligence so as to lead him to believe that the bottles of the defendants are bottles manufactured by the plaintiff company. It is also stated that there is no sense in using the word 'MBB' when the defendant-firms name is Kashmir Dreamland Distilleries. The word 'MBB' is used by the defendants only to pass off their goods for that of the plaintiff-company.

5. Mr. Z. A. Shah appearing on other side has controverted this position and has stated that there is no similarity between the two labels or the whiskies. The colour of the two whiskies is also not the same Whisky bottled and distilled by the plaintiff is of a deeper colour and that prepared by the defendant is of a lighter colour. He contends that the word 'MMB' written on the b