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(iii) On enquiry, it was told that the Trademarks Act does not distinguish between IMFL and country liquor, with both being placed in the same class;

(iv) Attention was however invited to Law of Trade Marks & Geographical Indications by Mr. K.C. Kailasam, Second Edition 2005 on page 490 whereof in the commentary under Section 29, it has been opined by the learned author that the classification of goods and services adopted by the Registry is not the determining or guiding factor for ascertaining similarity of goods and services and the classification is only an administration system, to facilitate search for conflicting marks and examination by the Trademarks Registry. It was thus argued that in the classification under the Trademark Rules, medicines for humans and animals are placed in the same class and thus classification is immaterial. Reliance in this regard was also placed on para No.5 in Chapter V of Kerly‟s Law of Trade Marks and Trade Names, Twelfth Edition opining that the fact that certain goods or services may fall within the same class is no evidence that they are of the same description which is the important criteria in considering the restrictions on registrations;

(viii) Attention was invited to Section 29(2) of the Trademarks Act and it was contended that the present case would at best fall in Sub-clause (b) thereof, as of similarity to registered trademark and identity or similarity of goods covered by the registered trademark and not in Sub-clause (c) providing for identity with the registered trademark and identity of the goods and it was contended that the presumption under Section 29(3) of likely confusion on the part of the public is available only to cases falling under Sub-clause (c) and not to cases falling under Sub-

(v) That Section 2(1)(za) of the Trademarks Act describes trade description as a description, statement or other indication as to the standard of quality of goods according to a classification commonly used in the trade;

(vi) that the use by the defendant of the trademark „TOLD MOM‟ and „TOLD MOM Label‟ similar / deceptively similar to the mark and label „OLD MONK‟ of the plaintiff will affect the goodwill and will hurt the image of the plaintiff;

(vii) that the products of the plaintiff and the defendant are of the same nature;

(viii) that the plaintiff‟s trademark is a well known trademark within the meaning of Section 2(1)(zg) of the Trademarks Act;

(ix) that the Division Bench of this Court in United Biotech Pvt.

Ltd. Vs. Orchid Chemicals & Pharmaceuticals Ltd. 2012 (50) PTC 433 (Del.) (DB) after considering most of the judgments cited hereby on behalf of the defendant, held that the test to be applied is of deceptive similarity and it is to be seen whether the two marks are structurally and phonetically similar and would cause deception in the mind of the consumer and upheld the removal of the trademark „FORZID‟ for the reason of the same being deceptively similar to the earlier registered trademark „ORZID‟, both in relation to pharmaceutical products;