Registration of Trade Mark without limitation of colour is for all colours.

The appellant was manufacturing camphor tablets under the name and style of "Gopal Camphor Tablets". When he came across the respondent's product "Muruga Camphor", he filed a suit to restrain the respondent from marketing his product, which was dismissed and hence this appeal.

2. According to the appellant, he is the registered owner of the trademark carton with the distinctive figure of "Lord Krishna". The carton's get-up, colour scheme and layout had been specifically designed. He had obtained registration on All-India basis. The registration number is 316466 in Class 3 Par (A). It was first registered in the year 1967, and with a slight difference again registered in 1980. The registration has been renewed till date. He has been in the camphor business for over forty years with a very good reputation. The appellant had also incurred heavy expenditure in advertising and marketing the products. One day, his agent saw a camphor carton very similar to the appellant's carton. In fact, in some respects it was virtually identical. So, he issued a legal notice. Since the said notice proved ineffective, O.S. No. 142 of 1995 was filed before the District Judge, Coimbatore for permanent injunction and for delivery of cartons, laminations etc.

3. The respondent resisted the suit. The registration obtained by the appellant was denied and the suit was attacked as not being maintainable. According to the respondent, the suit was an attempt to stifle competition. The allegation regarding the deceptive similarity was denied and attributed to the fact that most of the labels were printed at Sivakasi. The suit, according to the respondent had to be dismissed.

4. Four issues were framed by the trial Court. The plaintiff examined two witnesses on his side and marked five documents. The defendant did not adduce any oral evidence, but marked three documents on their side. The trial Court held that the suit was maintainable, but dismissed it on the ground that there was neither infringement of trademark nor passing-off.

5. The question that has to be decided in this appeal is whether there has been any infringement of the appellant's rights. Mr. K. Raja, learned counsel for the appellant took great pains to refer to the relevant provisions of the Trade and Merchandise Marks Act 1958 (hereinafter referred to as "the Act") and also the relevant decisions Learned Counsel urged that unless there is blatant and undisguised imitation, comparison of the two trade marks side by side and dissection of the same feature by feature, will make it very difficult to establish infringement in any case. Side by side comparison is really not the proper approach in any infringement action. The question whether one mark is likely to cause confusion with another is for the Judge alone to decide and this duty cannot be abdicated by him. The learned counsel referred to the following decisions,

1. Kaviraj Pandit Durga Dutt Sharma v. V. Navaratna Pharmaceutical Laboratories.

2. Parle Products (P) Ltd., v. J.P. and Co. Mysore.

3. National Match works, Sivakasi v. S.T. Karuppanna Nadar (died), 1979 AIR(Madras) 157

4. M/s Hiralal Parbhudas v. M/s Ganesh Trading Co., 1984 AIR(Bombay) 218

5. P.L. Anwar Basha v. M. Natrajan, 1980 AIR(Madras) 56.

And most importantly, he referred to the Judgment in

6. Tavener Rutledge Ld. v. Specters Ld., 1959 RPC 355.

Which is a judgment by the Court of Appeal confirming a judgment rendered on the Chancery Division. According to the learned Counsel, this decision would settle the issue.

6. Mr. V. Venkataswami, learned counsel for the respondent, on the other hand submitted that there was absolutely no infringement of trade mark warranting issue of injunction since, as rightly held by the trial Court, no one was likely to be deceived or confused by any similarity between the two cartons. The learned counsel for the respondent also cited the three decisions reported in Parle Products Limited v. Bakemans Industries Limited, (1998) 3 Mad. L W 294, W