JUDGMENT
S. Jagadeesan, J.
1. The appeal is directed against the judgment and decree dated 13.11.1996 in C.S. No. 734 of 1984 on the file of this Court.
2. The respondent herein filed the said suit for the relief of permanent injunction restraining the appellant from manufacturing, selling and offering for sale of the collerium with the offending mark “EYESEE” or any other trade mark with the device of an eye on the word “EYE” on which is in any way deceptively or phonetically similar to or a colourable imitation of the respondent’s registered trade mark ‘EYETEX’ and restraining the appellant from imitating the get up or any part of the get up and passing off their goods as that of the respondent. The consequential reliefs sought for in the suit are to direct the appellant to render the true account and to surrender all the cartons, labels and other printed matters containing or consisting of the offending trade mark “EYESEE”.
3. The case of the respondent is that they are the registered owners of the trade mark “EYETEX”, which has become their special and distinctive trade mark in respect of their product in cosmetics. Since the appellant is also dealing in the cosmetics using the offending trade mark “EYESEE” with almost similar get up and phonetically also, the words are similar by using the offending trade mark, the appellant has committed infringement in respect of the registered trade mark of the respondent and also the appellant passed off the goods in cosmetics as that of the respondent. When both the marks are deceptively similar, the respondent is entitled for a decree as prayed for.
4. The contention put forth by the appellant is, that the cosmetic product produced by the appellant is being sold in the shandis of the villages whereas the product of the respondent is being sold in the shops. Further, the difference in the price of both the commodities looms large, since the appellant’s commodity costs 25 P, whereas the respondent’s commodity costs Rs. 2.75. Further, it is pleaded by the appellant that the commodity of the appellant is being sold among the illiterates, whereas the commodity of the respondent is being sold in towns and cities. On this ground, it was further pleaded that there is no infringement of the trade mark by the appellant and also no question of passing off arises, as the appellant does not have the trade in the towns and cities.
5. On the above pleadings and after considering the materials available on records the learned Judge found that trade mark used by the appellant amounts to an infringement of the trade mark of the respondent and thereby the appellant also committed the action of passing off their goods as that of the respondent. Consequently, the suit was decreed as prayed for. Hence, the present appeal.
6. Learned counsel for the appellant vehemently contended that the words “EYE” used in both the trade marks are common. Further, it was contended that the respondent’s commodity is being sold only in the towns and cities at the cost of Rs. 2.75, whereas the appellant’s commodity is being sold in the rural areas, that too, mostly in the shandis of the villages at the cost of 25 P. Further, the word used by the appellant is totally different from that of the respondent and hence, the name used by the appellant is not phonetically similar. Further, on the design used in the cover, the word “EYE” also varies and on these differences, it cannot be said that both the trade marks are identical with each other. When there is a total differentiation both by phonetically as well as by design, the respondent has totally failed to make out a case and the learned Judge was carried away by the similarity in both the trade marks without going into the differences pointed out by the learned counsel for the appellant. Hence, the judgment and decree of the learned Judge are liable to be set aside.
7. On the contrary, learned counsel for the respondent, with equal vehemence, contended that the Court is entitled to compare the trade mark and the design used by the parties and decide the issue as to whether the same are identical or not. While doing so, it is for the Court to consider the similarities and it is not open to the Court to consider the minute differences to note down the dis-similarities to come to the conclusion with regard to the offending nature of the trade mark. If a comparison is made on the above principle, it is clear that the learned Judge rightly held that the trade mark used by the appellant had infringed the trade mark of the respondent Hence, no interference is called for.
8. We have carefully considered the contentions of both the learned counsel.
9. The case being one regarding the infringement of the trade mark, there is no need to discuss the facts elaborately. The only consideration is to compare both the trade marks and to find out as to whether the similarities are more or the dissimilarities are more and further as to whether the dis-similarities are more visible, by which, the trade mark can be differentiated without any difficulty. The trade mark of the respondent is with the letters “EYETEX” with a drawing of an eye above the trade mark. The appellant’s trade mark is also with the letters “EYESEE” with an eye above the trade mark.
10. Even though there is some difference in the words “EYETEX” and “EYESEE” phonetically, but, still, it is not known as to whether the unwary purchaser could differentiate the same while purchasing the commodity. When the commodities of both the parties are compared with the containers, there is no difficulty for us to conclude that there is every possibility that the unwary purchaser is likely to be deceived and the similarities are more than the dis-similarities. Even in respect of the dis-similarities pointed out by the learned counsel for the appellant one has to minutely compare the containers, which would not be possible for every purchaser at the time of purchase of the commodities. Even then, there is a possibility for a dealer to pass off to the supplier the commodity of each other.
11. It is unnecessary for us to repeat what are all the learned Judge discussed about the unwary purchaser and about the deceptiveness of the containers. When we agree with the learned Judge with regard to the findings, we do not want to repeat the same except to state that the learned Judge has elaborately gone into the similarities of the trade mark of both the appellant as well as the respondent and ultimately held that the appellant has committed an infringement of the trade mark of the respondent.
12. Accordingly, the original side appeal fails and is dismissed. No costs.