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7. The learned counsel appearing for the appellant has relied upon a catena of decisions regarding the points to be born in mind by the Court while considering the contention for passing off action. It is unnecessary to refer to all the decisions cited by the learned counsel appearing for the appellant as in the recent decisions cited by the learned counsel appearing for the appellant in Cadila Health Care Limited v. Cadila Pharmaceutical Ltd., AIR 2001 SC 1952 : 2001 PTC (21) 300(SC) the Hon'ble Supreme Court has referred to the earlier decisions rendered by the same court and has laid down the points to be born in mind while considering the application for infringement of registered trade mark and passing off action and considering the application for grant of injunction. Hon'ble Supreme Court has referred to the provisions of Trade and Merchandise Trade Mark and it has been observed in para-10 as follows: "Under Section 28 of the Trade and Merchandise Marks Act on the registration of a trade mark in part A or B of the register, a registered proprietor gets an exclusive right to use the trade mark in relation to the goods in respect of which trade mark in the manner provided by the Act. In the case of unregistered trade mark, Section 27(1) provides that no person shall be entitled to institute any proceeding to prevent, or to recover damages for, the infringement of an unregistered trade mark. Sub-section (2) of Section 27 provides that the Act shall not be deemed to affect rights of action against any person for passing off goods as the goods of another person or the remedies in respect thereof. In other words in the case of unregistered trade marks, a passing off action depends upon the principle that nobody has a right to represent his goods as the goods of some body. In other words a man is not sell his goods or services under the pretence that they are those of another person. As per Lord Diplock in Erven Warnink VB v. J. Townend & Sons, (1979) 2 All ER 927, the modern tort of passing off has five elements i.e. (1) a misrepresentation, (2) made by a trader in the course of trade, (3) to prospective customers of his or ultimate consumers of goods or services supplied by him, (4) which is calculated to injure the business or goodwill of another trader (in the sense that this is a reasonably foreseeable consequence), and (5) which causes actual damage to a business or goodwill of the trader by whom the action is brought or (in a quia timet action) will probably do so."

11. The Supreme Court after referring to the other decisions rendered by it and also the decision of the English courts has ultimately laid down the points that are to be borne in mind in a action for passing off an order on the basis of the unregistered trade mark generally for deciding cases in para 35 of the judgment as follows:

"Broadly stated in an action for passing off on the basis of unregistered trade mark generally for deciding the question of deceptive similarity the following factors to be considered: