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TMI Blog1972 (1) TMI 98X X X X Extracts X X X X X X X X Extracts X X X X ..... registered trade marks. One of them is the word "Gluco" used on their half pound biscuit packets. Another registered trade mark of theirs is a wrapper with its color scheme, general set up and entire collocation of words registered under the Trade Marks Act 1940 as No. 9184 of 7th December, 1942. This wrapper is used in connection with the sale of their biscuits known as "Parle's Gluco Biscuits" printed on the wrapper. The wrapper is of buff color and depicts 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 plaintiffs claim that they have been selling their biscuits on an extensive scale for many years past under the said trade mark which acquire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngs on the two wrappers and the words printed on the two wrappers were distinct and separate. The trial court meticulously examined the features found on the two wrappers and the packets of biscuits produced before it and took the view that there were greater points of dissimilarity than of similarity between the two and as such it was unlikely that the defendants, goods could be passed off as and for the goods of the plaintiffs. After pointing out the distinguishing features of the wrappers, the trial court concluded that there was no chance of a seller committing fraud on a customer and an ordinary purchaser would certainly refuse to purchase the defendants' goods if he was offered them as and for the plaintiffs' goods. Accordingly the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t two calves. The upper portion of the defendants wrapper is not similar to that of the ,Plaintiffs' wrapper." The High Court went on to comment: "it is true that in a passing off action, one is not to look to minor details but must take into consideration the broad features. Even if we take the broad features of the two wrappers into consideration, we do not think that they are similar. At any rate, they are not so similar as to deceive an ordinary purchaser of biscuits." With due respect to the learned Judges of the High Court, we are constrained to remark that they fell into an error. The plaintiffs' marks were registered under the Trade Marks Act, 1940 which was however repealed by S. 136 of the Trade and .,Merchandise Marks Act, 1958 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l with, or deceptively similar to, the trade mark, in relation to any goods in respect of which the trade mark is registered and in such manner as to render the use of the mark likely to be taken as being used as a trade mark." The expression '.'deceptively similar" has now been defined under s. 2(d) of the Act of 1958 thus "A mark shall be deemed to be deceptively similar to another mark if it so nearly resembles that other mark as to be likely to deceive or cause confusion;" It is to be noted that although there was no such provision in the definition section of the Act of 1940 s. 21(1) of the said Act was to the same effect. The Indian Trade Marks Act of 1940 was based on the English Trade Marks Act, 1938 and s. 21 of the Act of 1940 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n another way, if the essential features of the trade mark of the plaintiff have been adopted by the defendant, the fact that the get-up, packing and other writing or marks on the goods or on the packets hi which he offers his goods for sale show marked differences, or indicate clearly a trade or' in different from that of the registered proprietor of the mark would be material; whereas in the case of passing off, the defendant may escape liability if he can show that the added matter is sufficient to distinguish his goods from those of the plaintiff." According to Karly's Law of Trade Marks and Trade (9th edition paragraph 838): "Two marks, when placed side by side, may exhibit many and various differences vet the main idea left on the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 color 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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