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6. Mr. V. Venkataswami, learned counsel for the respondent, on the other hand submitted that there was absolutely no infringement of trade-mark warranting issue of function since, as rightly held by the trial Court, no one was likely to be deceived or confused by any similarity between the two cartons. The learned counsel for the respondent also cited the three decisions reported in Parle Products Limited v. Bakemans Industries Limited., 1998 (3)L.W. 294. Wander Limited and another v. Antox India (P.) Ltd., 1990(1) L.W. 495, Indo-pharma Pharmaceutical Works Ltd.. Vs Citadel Fine Pharmaceuticals Ltd., 1998 (2) L.W. 646.

That was a case where National Match Works, who had a registered trade marks for his matches was aggrieved by the deceptively similar mark used by S.T. Karuppanna Nadar for his matches.

16. In the decision reported in Parle Products (P) Ltd.. v. J.P. & Co.. Mysore, again the question of deceptive similarity was considered. In that case the trial Court had meticulously examined the features found on the two wrappers of the biscuit packets and took the view that there were greater points of dissimilarity than similarity. This was confirmed by the High Court which held that the similarity was not such as to deceive an ordinary purchaser of biscuits. The Supreme Court set aside this finding though it was a concurrent finding of fact and said, "It is therefore, clear that in order to come to the conclusion whether one mark is deceptively similar to another, the broad and essential features of the two are to be considered, They should not be placed side by side to find out if there are any differences in the design and if so, whether they are of such character as to prevent one design from being mistaken for the other. It would be enough if the impugned mark bears such an overall similarity to the registered mark as would be likely to mislead a person usually dealing with one to accept the other if offered to him. In this case we find that the packets are practically of the same size, the colour scheme of the two wrappers is almost the same; the design on both though not identical bears such a close resemblance that one can easily be mistaken for the other."

22. We shall consider the decisions cited by the learned counsel for the respondent. In the decision reported Parle Products Limited v. Bakemans Industries Limited., 1998 (3) L.W. 294, the learned Judge found that the packets were so dissimilar and no one will get cheated either visually or phonetically. That case was connected to biscuit wrappers so that decision will not apply to this case.

23. In the case reported in Indo-pharma Pharmaceutical Works Ltd.. v. Citadel Fine Pharmaceutical Ltd,. 1998 (2) L.W. 646, the plaintiff's products was in the form of syrup packed in bottles and the defendant's was in the form of capsules packed in cardboard boxes. The only grievance was in use of the trademark 'ENERJASE' as aganist the plaintiffs trademark 'ENERJEX'. Since the common feature 'ENERJ' was held to publici juris, this Court refused to grant injunction.