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13. Keeping in view the principles laid down in the authorities referred to above, let us now deal with the question raised in this case. The main ground on which the injunction is sought for by the appeal is that both the names, viz., 'ENERJEX' and 'ENERJASE' are phonetically similar and as such, the products of the respondent are likely to pass off as that of the appellant's goods. On the other hand, the counsel for the respondent submitted that the product of the appellant and the respondent are totally different and that, there is no visual and phonetic similarity.

(vi) Though his reply has been received by the appellant on 6.12.1995, he filed the present suit and got it numbered as C.A.No. 4 of 1997 after considerable delay.

15. The grievance of the appellant in these appeals is that though the appellant had complained in the suit about the phonetic similarity, the learned single Judge has not adverted to this point and merely held that the respondent trade mark is not similar to that of the appellant.

16. Before going into the contentions of the parties relating to the question of phonetic similarities between the words 'ENERJEX' and 'ENERJASE', let us at the outset refer to a few Sections of the Trade and Merchandise Marks Act, 1958 and the settled principles as laid down by various authorities in the field of trade marks.

(v) the manner in which the particular trade is carried on the class of persons it is alleged is likely to be deceived and all other surrounding circumstances.

25. Keeping these settled principles in our mind, we shall now deal with the question posed before us in this case. Now the action is sought for by seeking relief as against the infringement and passing off as pointed out by the learned Counsel for the appellant mainly on the basis of phonetic similarity. It is vehemently contended by the learned Counsel for the appellant that the learned single Judge passed the impugned order without considering the aspect of the phonetic similarity.

38. But in this case, the products 'ENERJEX' and 'ENERJASE' are different and the containers are also different. However, it is argued that there is clear phonetic similarity which would certainly give rise to the infringement and passing off action. In view of the emphastic assertion made by the learned Counsel for the appellant, let us now consider the question, whether the word 'ENERJASE', the defendant mark, would be atleast phonetically similar to the word 'ENERJEX', the plaintiff's mark.