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1.(b) As regards the trade mark "Navaratna Pharmaceutical Laboratories" which was in fact the name in which the plain- tiff carried on its business, the defence was that the crucial integer in that mark was the expression "Navaratna" and that if the plaintiff was not entitled to the exclusive use of the word "Navaratna" to designate its products, the combination of the word with the two other words "Pharmaceutical" and Laboratories" which were ordinary English words descriptive of the place where medicines were prepared could not render the trade mark a registerable one. For them two reasons the defence was that no claim could be made to relief under s. 21 of the Trade Marks Act, 1940. (2)Next it was submitted that even on the basis that the plaintiff was entitled to the use of the word "Navaratna' either alone or in the combination "Navaratna Pharmaceutical Laboratories", still the use, of the trade mark by the defendant of the words "Navaratna Kalpa" and "Navaratna Kalpa Pharmacy" were not either identical with nor deceptively similar to the plaintiffs marks and therefore he was not guilty of any infringement.

The next part of the learned Counsel's argument related to the question whether the Trade Mark used by the appellant viz., `Navaratna Pharmacy' "so nearly resembled the trade mark of the respondent as to be likely to deceive or cause confusion in the course of trade" within s. 21 of the Act. The mark is not identical and so the question is whether the appellant's mark is deceptively similar to the respondent's. On this matter also, there are concurrent findings of the Courts below regarding the deceptive similarity of the two marks. That the words 'Navaratna Pharmacy' and 'Navaratna Pharmaceutical Laboratories' are similar in the sense spoken of by s. 21 does not appear to us to be of much doubt. But the learned Counsel's submissions were two-fold: (1) that the Courts below had found that the word 'Navaratna' was a word in common use in the trade in Ayurvedic preparations and the courts rightly held the respondent could not claim exclusive rights to the use of that word in the mark. In these circumstances, Mr. Agarwala submitted that the Courts below should have insisted on either the respondent disclaiming exclusive rights to the word 'Navaratna' in the trade mark 'Navaratna Pharmaceutical Laboratories' or that the disclaimer should have been ordered as a condition of the trade mark remaining on the register under s. 13 of the Act., (2) The finding by the Courts below that the marks were deceptively similar was directly contrary to and inconsistent with their finding that the packing, label, get-up etc., in which the appellant's goods were marketed was not likely to cause any confusion in the market or deceive any purchasers, wary or otherwise on the basis of which the claim for passing off was rejected. As regards the first contention regarding disclaimer and the reference to s. 13, the matter stands thus. Under the terms of s. 13 of the Act, an order directing disclaimer could have been passed only by the High Court when- dealing with the appellant's application under s. 46 (2) of the Act. The application that he filed contained no prayer to direct a disclaimer, and no submission appears to have been made to the High Court when dealing with the petition or even with the appeal that the respondent should be directed to disclaim. In these circumstances, we do not consider it proper to permit the appellant to urge this argument before us.

When once the use by the defendant of the mark which is claimed to infringe the plaintiffs mark is shown to be "in the course of trade,, the question whether there has been an infringement is to be decided by comparison of the two marks. Where the two marks are identical no further questions arise; for then the infringement is made out. When the two marks are not identical, the, plaintiff would have to establish that the mark used by the defendant so nearly resembles the plaintiffs registered trade mark as is likely to deceive or cause confusion and in relation to goods in respect of which it is registered (Vide s. 21). A point has sometimes been raised as to whether the words "or cause confusion" introduce any element which is not already covered by the words "likely to deceive" and it has sometimes been answered by saying that it is merely an extension of the earlier test and does not add very materially to the concept indicated by the earlier words "likely to deceive". But this apart, as the question arises in an action for infringement the onus would be on the plaintiff to establish that the trade mark used by the defendant in the course of trade in the goods in respect of which his mark is registered, is deceptively similar. This has necessarily to be ascertained by a comparison of the two marks-the degree of resemblance which is necessary to exist to cause deception not being capable of definition by laying down objective standards. The persons who would be deceived are, of course, the purchasers of the goods and it is the likelihood of their being deceived that is the subject of consideration. The resemblance may be phonetic, visual or in the basic idea represented by the plaintiffs mark. The purpose of the comparison is for determining whether the essential features of the plaintiff's trade mark are to be found in that used by the defendant. The identification of the essential features of the mark is in essence p./65-5 a question of fact and depends on the judgment of the Court based on the evidence led before it as regards the usage of the trade. It should, however, be borne in mind that the object of the enquiry in ultimate analysis is whether the mark used by the defendant as a whole is deceptively similar to that of the registered mark of the plaintiff. The mark of the respondent which he claims has been in- fringed by the appellant is the mark 'Navaratna Pharmaceutical Laboratories', and the mark of the appellant which the respondent claimed was a colourable imitation of that mark is 'Navaratna Pharmacy. Mr. Agarwala here again stressed the fact that the 'Navaratna' which constituted an essential part or feature of the Registered Trade Mark was a descriptive word in common use and that if the use of this word in the appellant's mark were disregarded, there would not be enough material left for holding that the appellant had used a trade mark which was deceptively similar to that of the respondent. But this proceeds, in our opinion, on ignoring that the appellant is not, as we have explained earlier, entitled to insist on a disclaimer, in regard to that word by the respondent. In these circumstances, the trade mark to be compared with that used by the appellant is the entire registered mark including the word 'Navaratna'. Even otherwise, as stated in a slightly different context:(1) "Where common marks are included in the trade marks to be compared or in one of them, the proper course is to look at the marks as wholes and not to disregard the parts which are common".

It appears to us that the conclusion reached by the Courts below that the appellants mark is deceptively similar to that of the respondents cannot be stated to be erroneous. Besides, this question of deceptive similarity is a question of fact, unless the test employed for determining it suffers from error. In the present case, it was not suggested that the Courts below had committed any error in laying down the principles on which the comparison has to be made and deceptive similarity ascertained. (See per Lord Watson in Attorney-General for the Dominion of Canada v. Attorney- General for Ontario etc.) (2) . As there are concurrent findings of fact on this matter, we do not propose to enter into a discussion of this question de novo, since we are satisfied that the conclusion reached is not unreasonable. (1) Kerly on Trade Marks 8th Edn. 407. (2) [1897] A.C. 199.