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10. Mr. S. Chellaswamy, learned Counsel for the appellants submits that the lower Court has acted contrary to the principles adumbrated in Parle Products v. I.P. and Co. Mysore , wherein it has been categorically laid down that side by side comparison should not be made and what should be taken into consideration is the overall picture. Ignoring these principles, what the Court below has done is to make a comparison side by side and try to bring about all points of dissimilarity which are actually forbidden. Then again, the Court below has not appreciated the fact that both the size of the different labels and the colour scheme adopted will clearly go to show that the essential features of the plaintiffs' label have been adopted and that alone would be sufficient to decree the suit as laid down in K. Krishna Chettiftr v. Ambal and Co. . The learned Counsel relied on the decision in Chinnikrishna Chetty v. Venkatesa Mudaliar , and also a decision of this Court rendered by Varadarajan, J., in Amrutanjan Limited v. Mehta Unani Pharmacy Co. and Ors. C.S. No. 54 of 1970, in support of his submission that the overall similarity is the criterion which has to be applied in this case. Learned Counsel also relied on Kerry's Law of Trade Marks and Trade Names, page 792 in support of his above contention. No doubt, having regard to the terms of Section 10(2) of the Act, it is open to the defendants to use any colour but where the colour is so used in order to bring about a deceptive similarity, the Court ought to take note of that fact and ought to have granted relief in favour of the plaintiffs. In support of his submission, the learned Counsel relied on Kerry's Law of Trade Marks and Trade Names, page 855. The learned Counsel also cites page 137 of the Law of Trade and Merchandise Marks by Venkateswaran, page 211 of Narayanan's law of Trade Marks and Passing off and also the decision in In re, Worthington and Co.'s Trade Mark 14 Ch.D. 8.

14. Mr. S. Govind Swaminathan, learned Counsel for the respondents, would draw my attention to Parle Products v. J.P. and Co. Mysore , and state that there cannot be any uniform law in matters of this kind and the Judge who decides the matter would have to examine the label of the plaintiffs with the offending label and see whether there is overall similarity. The comparison will have to be made firstly for the purpose of the said overall similarity; and secondly to find out whether the essential features have been adopted. In that way, the Court below has examined side by side and such an examination is practically permissible as laid down in F. Hoffmann La Rochee and Co. v. Geoffrey Manners and Co. . If the marks are examined, there is no similarity whatsoever. The plaintiffs' label contains the picture of Lord Krishna while that of the defendants' contains two horses standing on their hind legs and resting their forelegs on a hexagonal structure. So, there cannot be any confusion on this score.

19. How the matter has to be approached in all these cases can be gathered from two decisions of the Supreme Court. In Parle Products v. J.P. and Co. Mysore , it has been held thus:

7. To decide the question as to whether the plaintiffs' right to a trade mark has been infringed in a particular case, the approach must not be that in an action for passing off goods of the defendant as and for those of the plaintiff. According to this Court in Durga Dutt v. Navratna Pharmaceutical Laboratories , while an action for passing off is a Common Law remedy being in substance an action for deceit, that is, a passing off by a person of his own goods as those of another, that is not the gist of an action for infringement. The action for infringement is a statutory remedy conferred on the registered proprietor of a registered trade mark for the vindication of the exclusive right to the use of the trade mark in relation to those goods (Vide Section 21 of the Act). The use by the defendant of the trade mark of the plaintiff is not essential in an action for passing off, bu is the sine qua non in the case of an action for infringement.