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3. It is the case of the plaintiff that they came to know from the market somewhere in the fourth week of December, 1999 that the respondent No. 2 has started selling the groundnut oil affixed with the trade mark label containing the words "TIN EKKA" and the device of "Three Aces" and the device of groundnuts. It is the case of the plaintiff that the groundnut oil sold by defendant No. 2 under the above said trade mark which is identical and deceptively similar to the trade mark label of plaintiff, causes confusion in the minds of the customers. It is the case of the plaintiff that the trade mark of the defendants respondents "TIN EKKA" is also identical and deceptively similar in style, manner, lay-out, get-up, colour scheme and placement of various features so as to come closer to the brand style of its trade mark label and the plaintiffs trade mark "EKKA" with the device of "Four Aces". This, according to the plaintiff, results in grave passing off their goods as the goods of the plaintiff with the intention to gain illegally upon the vast popularity of the plaintiff and trade mark style used by them and to damage the high goodwill and reputation of the plaintiff. It is the case of the plaintiff that it was within the knowledge of the defendants that the trade mark label "EKKA" has become popular amongst major cities of the Gujarat, and therefore, the defendants have deliberately and intentionally imitated the trade mark and label of EKKA and the device of "Four Aces" of the plaintiff and have started very recently selling the groundnut oil under the above deceptively similar device. In this regard, there was some exchange of notices between the parties. The suit came to be filed for the permanent injunction restraining the defendants from using the trade mark label "TIN EKKA" with the device, which is similar to the plaintiff and thereby restraining them from passing off their edible oils and groundnut oil as the goods of the plaintiff.

8. Learned Advocate Mr. D. N. Patel for the appellant plaintiff attacking the above said order contended that the learned Judge failed to consider the profit statements produced on the record to show that right from 1984 the plaintiff had obtained reputation and goodwill with the above said trade mark. It was also contended that the affidavits filed by independent traders and customers were not considered by the trial Judge. It was also contended that the trial Judge failed to consider the similarity of both the trade marks from the view-point of common man. On the contrary, the learned trial Judge has taken into consideration the view-point of higher class which is also not correct. It is also contended that the method adopted by the trial Judge to compare microscopically both the labels and to come to the conclusion that there are dissimilarities between the two trade marks, is also erroneous and against the established law. It is urged that what the trial Judge was required to consider was whether within the definition of Section 2(2), the label of the defendants was deceptively similar to that of me plaintiff from the view-point of common man. Learned Advocate Mr. Patel has relied upon some authorities to support his contention that what factors are required to be considered in an action of passing off the goods. It is contended that the broad and essential feature of similarity of the two labels must be taken into consideration and the test which is to be applied is not to keep both the trade marks side by side, but by imperfect recollection of an ordinary man i.e., customer. It was urged that the trial Court adopted absolutely a wrong method to evaluate the facts of the case and the law as well. It is urged that both the labels are deceptively similar to the extent that the defendants have adopted name "TIN EKKA ", almost similar colour, get-up, picture of Three Aces and the groundnuts, which is sufficient to come closer to the trade mark label of the plaintiff. Therefore, it was urged that the Appeal be allowed and the impugned order is required to be set aside and defendants be restrained from using the Trade Mark as prayed for in Application-Exh. 5.

9. As against that, learned Advocate Mr. Hasit H. Joshi for the respondents-defendants has argued that the learned trial Judge has taken correct exercise to come to the conclusion as to whether both the labels were similar, let alone deceptively similar. It was urged that "TIN EKKA" is used by the defendants since 1997 and as per their profit figures, it is clear that the defendants have prospered and have obtained good-will and reputation with the brand "TIN EKKA ". It is urged that as enumerated in the impugned order, the two labels i.e., two Trade Mark Labels are apparently dissimilar and cannot cause any confusion in the minds of consumers nor the label of defendants is deceptively similar that of the plaintiff. It was urged on behalf of the respondents that the language used in the labels are material to decide the issue. The language used in the trade mark of the defendants is in Hindi which can be read properly by person who are purchasing this edible oil from the trade mark while the language used by the plaintiff in the trade mark is in English, which cannot be read by common person. It is alleged that the defendants are manufacturing the groundnut oil in 15 Kgs tins only and not in small packages. Therefore, the 15 Kgs tins will be purchased naturally by certain class of people who are highly placed in the society and are not likely to be deceived by the trade mark. It is urged that though the learned trial Judge has not relied upon the affidavits of the traders filed on behalf of the defendants, but those affidavits are of such traders who are dealing in edible oils of all brands including the brand of plaintiff and defendants, and these dealers say that the public i.e. consumer demands groundnut oil and edible oils by Trade Mark of "TIN EKKA" and therefore there is no likelihood of creating any confusion in the minds of consumers. It is argued that admittedly the Trade Mark of none of the parties is registered. The plaintiff - appellant's grievances are in regard to the infringement of the Trade Mark as per Section 2(1)(d) of the Trade & Merchandise Marks Act, 1958 and heavy reliance has been placed in the matter of F. Hoffimann-La Roche & Co. Ltd. v. Geoffrey Manners & Co. Private Limited, reported in AIR 1970 SC 2062, which describes the test to be undertaken in deciding whether Mark is deceptively similar to another mark. Reliance is also placed on a decision of this Court in the matter of Thakkar Balvantray Purshottamdas v. Hasmukhbhai Ugarchand Patel, reported in 1994 (2) GLR 1714, wherein this Court while considering Sees. 2(d), 27 and 29 examined distinction between infringement of trade mark and passing off action. Relying on this, it was urged that in passing off action, as laid down by this Court in the above decision dissimilarity is required to be taken into consideration, and therefore, the trial Judge has rightly undertaken the exercise to compare minutely both the labels. It was urged that the Appeal therefore is required to be dismissed.

It is the established rule that Courts should not substitute its own opinion in place of the proved facts to come to the conclusion. Whether the two Trade Marks are similar or dissimilar can be considered by an objective approach and from the evidence on record. The Court should look for the independent evidence in passing off action to come to the conclusion that whether the one Mark is deceptively similar to the other Mark. Thereafter, the Court may look at the trade marks and come to the independent decision. Court cannot, in any case, put both the trade marks side by side and form subjective dissimilarity in both the trade marks and come to the conclusion that in the opinion of the Court, laying both the marks side by side, comparing them, Court finds certain dissimilarity, and therefore, both the trade marks are not deceptively similar. The whole approach of the trial Court is absolutely wrong in passing off the action. As said earlier, what is important is to look at both the marks in respect to their broad and essential features from the point of view of common man more particularly a common customer and come to the conclusion from the evidence on record whether the common man is likely to be deceived by one trade mark label for another. Objective, phonetic as well as visual test to find out deception, if any, must be applied. The goods which are being sold under both the labels are also required to be considered. Courts must also take into consideration kind and class of the customer, who would be likely to buy those goods. Court must take into consideration all the surrounding factor. However, the learned trial Judge in this particular case, has failed to appreciate and evaluate the real controversy in the matter because the rule of law is that the real question which is to be decided in such cases is to see as to how an unwary purchaser who must be looked upon as an average man of ordinary intelligence, would react to a particular trade mark, what impression he would form by looking at the trade mark and in what respect he would connect the trade mark with the goods which he would be purchasing. Undoubtedly, an unwary customer would not have an opportunity to lay both the marks side by side and minutely examine them for similarity or dissimilarity. Therefore, I cannot accept the argument on behalf of the respondents that both the marks are dissimilar in so many respects as compared by the trial Judge, and therefore, the confusion is not likely to cause in the mind of customer and hence the trade mark of the defendants-respondents cannot be said to be deceptively similar to that of the plaintiff. Mr. Joshi has relied on a decision of the Supreme Court in the matter of Roche & Co. v. G. Manners & Co. (supra), which is a case of "Dropovit" and "Protovit". Whether those trade names are deceptively similar or not? This question arose before the registrar of the Trade Marks to decide whether one mark was deceptively similar to other mark. The Apex Court observed in the said decision that the mark must be compared as a whole. It is not right to take a portion of the word and say that because that portion of the word differs from the corresponding portion of the word in the other case, there is no sufficient similarity to cause confusion. The Apex Court further observed that the true test is whether the totality of the proposed trade mark is such that it is likely to cause deception or confusion or mistake in the minds of persons accustomed to the existing trade mark. Therefore, as stated in Lavroma case, Takalon Ltd. v. Davidson & Co., reported in 32 RPC 133 which is referred by the Apex Court in the above said case, it is observed that "we are not bound to scan the words as we would in a question of comparatio liberarum. It is not a matter for microscopic inspection, but to be taken from the general and even casual point of view of a customer walking into a shop."