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(iv) The plaintiffs have rights both in the composite as well as a part of the trade mark, i.e., in both "RICH‟S WHIP TOPPING" as well as in "WHIP TOPPING".

The defendant‟s use of the infringing mark is violative of the plaintiffs‟ proprietary right in a registered mark; a violation which squarely falls within the ambit of Section 29(2)(b) or in the very least in Section 29(2)(c) of the Trade Marks Act, 1999 (in short the „Trade Marks Act‟).

17. Mr Gupta, in order to buttress his submissions, relied upon the following judgment in order to draw my attention to the test adopted by courts in determining what would constitute a deceptively similar mark or trade dress. Cadila Health Care Ltd vs Cadila Pharmaceutical Ltd (2001) 5 SC 73; Parle Products (P) Ltd vs S.P. & Co. (1972) 1 SCC 618; Lever vs Goodwin 1887 (4) RPC 492; Spalding (AG) & Bros. vs AW Gawage (1915) 32 RPC 273 and Parker-Knoll Limited vs Knoll International Limited 1962 RPC 243.

34. It is now well-settled that in determining whether or not an infringing mark is deceptively or confusingly similar to a registered mark the courts usually follow the following parameters:

(i) they look for similarities rather than dissimilarity. [see Cadila Healthcare (supra)]
(ii) the similarities are not judged by keeping the registered and the infringing mark alongside [see Parle Products (supra)]
(iii) the test of fading memory of a consumer is applied.
(iv) in the absence of cogent evidence the presiding officer, i.e., the Judge may resort to an ocular test with regard to the similarities in the registered trade mark and the infringing mark.