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6. Whether the acts of the defendant constitute infringement of the registered trademarks of the plaintiffs? (OPP)
7. Whether the acts of the defendant constitute passing off its goods as and for the goods of the plaintiffs? (OPP)
8. Whether the trademark/label of the defendant, annexed as Annexure B to the plaint is different and not deceptively similar to the plaintiff's trademark/label attached as Annexure A to the plaint? (OPD)

26. The Defendant has filed its written statement at an early stage and though the Defendant is ex-parte, the defences raised therein are being considered. In the written statement, the main plank of the Defendant's case is that the label and the mark are not identical or deceptively similar. No substantial defence has been taken in the written statement, except for claiming that the Defendant's products are different from the Plaintiffs' products. A perusal of the documents filed by the Defendant shows that the Defendant had filed the Trademark Application bearing No.1124200 dated August, 2002 in Class 30 in respect of goods being all kinds of food products, including confectionary, churan goli, etc. The user claimed in this application is of the year 1979. The search report in respect of the said trademark has also been placed on record. The same is relied upon by the Defendant to contend that the impugned trade mark/label of the Plaintiffs does not find mention in the search report, and therefore, the said trade mark/label of the Defendant cannot be said to be identical with or deceptively similar to the trade mark/label of the Plaintiffs. The product packaging/label of a third-party seller under the name 'YO YO' has also been placed on record to show that the same is deceptively similar to the Plaintiffs' products. The said label is set out below:

38. Similar marks or features used in wrappers of competing biscuits was the subject matter of Parle Products (P) Ltd. v. J.P. & Co. (supra). The Appellants there owned certain registered trademarks one of which was "Glucose" and was used on their half pound biscuit packets. Another registered trade mark was a wrapper with its colour scheme, general set up and entire collocation of words. The wrapper was of buff colour and depicted a farm yard with a girl in the centre carrying a pail of water and cows and hens around her on the background of a farmyard house and trees. The Respondent's wrapper contained a picture of a girl supporting with one hand a bundle of hay on her head and carrying a sickle and a bundle of food in the other, the cows and hens surrounding her. The trial court declined the injunction. The High Court looking at the broad features did not think that they were so similar so as to deceive an ordinary purchaser. Since it was an action for infringement, the Supreme Court declined to treat it as a case of passing off. Nevertheless, it explained that in order to come to a conclusion whether one mark is deceptively similar to another "the broad and essential features of the two are to be considered." It was further explained as under:

"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. The essential features of both are that there is a girl with one arm raised and carrying something in the other with a cow or cows near her and hens or chickens in the foreground. In the background there is a farm house with a fence. The word "Gluco Biscuits" in one and "Glucose Biscuits" on the other occupy a prominent place at the top with a good deal of similarity between the two writings. Anyone in, our opinion who has a look at one of the packets to-day may easily mistake the other if shown on another day as being the same article which he had seen before. If one was not careful enough to note the peculiar features of the wrapper on the plaintiffs goods, he might easily mistake the defendants' wrapper for the plaintiffs if shown to him some time after he had seen the plaintiffs'. After all, an ordinary purchaser is not gifted with the powers of observation of a Sherlock Holmes. We have therefore no doubt that the defendants' wrapper is deceptively similar to the plaintiffs' which was registered."