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This is not relevant to the facts of the case on hand and as such it is not helpful to the respondent. The learned counsel also relied catena of decisions which are not relevant to the present case.

12. Both the learned Counsel relied upon the below mentioned judgment:-

In Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd., 2001 (2) CTC 430 it was held as follows:-
"10. 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 is registered and to obtain relief in respect of infringement of the trade mark in the manner provided by the Act. In the case of an 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 an un-registered trade marks, a passing off action is maintainable. The passing off action depends upon the principle that nobody has a right to represent his goods as the goods or service under the pretence that they are those of another person. As per Lord Diplock in Erwen Warnink BV v. J. Townend & Sons, 1979 (2) AER 927, the modern tort of passing off have 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.
35. 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:-
(a) The nature of the marks i.e., whether the marks are word marks are label marks or composite marks i.e., both words and label works.
(b) The decree of resemblance between the marks, phonetically similar and hence similar in idea.
(c) The nature of the goods in respect of which they are used as trade marks.

13. In the above said case, the Supreme Court has held that in an action for passing off on the basis of unregistered trade mark for deciding the question of deceptive similarity, the Court shall look into the nature of marks or word or label marks or composite marks i.e., both words and label works; the decree of resemblance between the marks, phonetically similar, nature of goods in respect of which they are used as trademarks, the similarity in the nature, character and performance of the goods of rival traders, class of purchasers who are likely to buy the goods bearing the marks they require, education and intelligence and degree of care they are likely to exercise in purchasing or using the goods, the mode of purchase of the goods or placing order for the goods and any other surrounding circumstances which may be relevant in the extent of dis-similarity between the competing marks. The Supreme Court also cautioned the weightage to be given to each of the aforesaid factors depend upon the facts of each case.