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146), where the question of similarity arose at the stage of opposition to the appellant's mark by the respondents ( who had a registered trade mark), it was observed that: "it is for the court to decide the question on a comparison of the competing marks as a whole." The resemblance between the two marks must be considered with reference to the ear as well as the eye". In Roche and Co. Vs. Geoffrey Manners and Co.Pvt. Ltd. ( AIR 1970 SC 2062), the question of 'deceptive similarity' was raised by the appellant ( a registered trade mark holder) for removal of the respondent's trade mark, in rectification proceedings. (The decision is relevant in an infringement action except that the burden of proof in an infringement action is on the plaintiff while in an application for rectification it is the applicant). It was again observed in the above case that: "it is necessary to apply both the visual and phonetic tests". "It is also important that the marks must be compared as whole". "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". In yet another case of an infringement action, Parle Products (P) Ltd. Vs. J.P. and Co., Mysore ( AIR 1972 SC 1359), the question was in relation to a wrapper with the words 'Gluco biscuit' and the particular colour scheme, the general get up used for sale of Parle's Gluco Biscuit' so printed on the wrapper. There was a farmyard with a girl in the centre carrying a pail of water and cows and hens around her in the background of a farm-house. The defendant was selling biscuits with the name 'Glucose Biscuits'. The wrapper contained picture of a girl supporting with one hand a bundle of hay on her head and carrying a sickle and a bundle of food, with cows and hens around, in the background of a building. This Court held, on those facts, that in an infringement action, it was sufficient if there was 'overall similarity' as would mislead a person usually dealing with one to accept the other if offered to him. Here the packets were of the same size and the colour scheme and design were having close resemblance. The marks should not be kept side by side and compared. The essential features of both marking were a girl with one arm raised and carrying something in the other while the cows or hens were near her, in the background of a house. The decision of this Court in Durga Dutt Sharma Vs. Navaratna Pharmaceutical Laboratories ( AIR 1965 SC 980), was a case where the respondent-registered holder of the trade mark opposed the appellant's registration. The question of deception arose in that context. Both were using the word 'Navratna Pharmaceutical laboratories' in connection with sale of Ayurvedic medicines. It was held that for judging whether the later mark was deceptive, it was sufficient if the similarity was so close visually, phonetically or otherwise. If the essential features had been proved to be adopted by the opposite party, that was sufficient. The fact that the get-up, packing and other writing or marks on the goods or packets showed marked difference was not material, though such features could be material in a passing-off action and the defendant might escape liability by showing some additional matter to distinguish his goods. The purpose of comparison was to see if the essential features were different. The object of inquiry was to find out if the defendant's mark was as a whole similar to the plaintiff's registered mark. Ruston and Hornsby Ltd. Vs. The Zamindara Engineering Co. ( 1969(2) SCC 727) was again a case of an infringement action. It was admitted that the words 'Ruston and Rustam' were deceptively similar and the fact that to the latter, "India" was suffixed made no difference. The court pointed out the difference between an infringement action and a passing off action and held that if there was colourable imitation, the fact that the get up was different was not relevant in an infringement action though it might have had relevance in a passing off action, and in that context referred to Saville Perfumery Ltd. Vs. Jump Perfect Ltd. [(1941) 58 RPC 147 (161)]. Broadly, under our law as seen above, it can be said that stress is laid down on common features rather than on differences on essential features, except for a passing reference to a limited extent in one case. Difference in essential features are also relevant under Indian Law: It appears to us that this Court did not have occasion to decide, as far as we are able to see, an issue where there were also differences in essential features nor to consider the extent to which the differences are to be given importance over similarities. Such a question has arisen in the present case and that is why we have referred to the principles of English Law relating to differences in essential features which principles, in our opinion, are equally applicable in our country. Application of Principles to facts of this case: If differences in essential features are relevant, the next question is as to what is the position on facts. The first question therefore is as to what, on the facts, are the essential features of the plaintiff's mark? It is clear that apart from the word PIKNIK, the essential features are also the special script of these words in block letters and the curve in which these words are inscribed and the caricature of the boy with a hat occurring between the words K and N on the plaintiff's mark. On the other hand, the defendant's mark contains the words PICNIC in a straightline, the script is normal and the words `Cadbury' are written above the words PICNIC. Neither the peculiar script nor the curve nor the boy with a hat are found in the defendant's mark. It is true that there is phonetic similarity and use of the word PICNIC. But what is the effect of the dissimilarities? This is the crucial part of the case. It is here that sufficient care is to be taken in applying the principles. In our opinion, in the present case, three tests to which reference has been made above, have to be applied. The first one is this: Is there any special aspect of the common feature which has been copied? The second test will be with reference to the `mode in which the parts are put together differently? That is to say whether the dissimilarity of the part or parts is enough to mark the whole thing dissimilar (Kerly para 17.17 referred to above). The third test is whether When there are common elements, should one not pay more regard to the parts which are not common, while at the same time not disregarding the common parts? What is the first impression? As to the first test, whether there are any peculiar features of the common part which have been copied, it is seen that the peculiar aspects of the common features of PIKNIK namely the peculiar script and the curve have not been copied; then, as to the second test, we have to see the dissimilarity in the part or parts and if it has made the whole thing dissimilar. Absence of the peculiar script in the letters, the curve and the absence of the caricature of the boy with a hat, in our view, have made the whole thing look dissimilar. Then, as to the third test, the above three dissimilarities have to be given more importance than the phonetic similarity or the similarity in the use of the word PICNIC for PIKNIK. That is how these three tests have to be applied in this case. On first impression, we are of the view that the dissimilarities appear to be clear and more striking to the naked eye than any similarity between the marks. Thus, on the whole, the essential features are different. Learned senior counsel for the respondent had also strongly relied on Registrar, Trade Marks Vs. Ashok Chandra Rakhit ( AIR 1955 SC 558) to contend that, in any event, the plaintiff had registered only the label and not the words PIKNIK. In that case, this Court quoted (P.565) the following words from Pinto Vs. Badman [1891 (8) RPC 181 (at 191)] to the following effect: "The truth is that the label does not consist of each particular part of it, but consists of the combination of them all." We do not propose to go into the applicability of the above decision to the case before us. There, the question was whether the Registrar could insist that a particular word contained in the label should be disclaimed. In the result, we hold on the question of infringement that on an examination of the relative strength of the pleas, as stated in Palmolive, it is shown that the chances, on facts, are more in favour of the defendant rather than in favour of the plaintiff and that the plaintiff is not entitled to temporary injunction. This finding on facts is confined to these interlocutory proceedings only. Deceive or confuse: Our discussion under this head is again in the context of the relevant strength of the case of the parties and for the purposes of the temporary injunction as laid down in Palmolive. Section 29 uses the words `deceptively similar' and section 2(1)(d) defines `deceptively similar' as situations where one is `deceiving' others or `confusing' others. We have to keep in view the distinction between the words `deceive' and `confuse' used in section 2(1)(d). These words which occur in the various trade mark statutes have been explained in Parker-Knoll vs. Knoll International [(1962) RPC 265(HL) (pp.273-274)] by Lord Denning as follows: "Looking to the natural meaning of the words, I would make two observations: