' Respondent No, 1 filed a suit against the appellant and respondent No, 2 for permanent injunction restraining them from selling 'sohan Halwa' in packets inscribed with the name, and having the design, colour and general get up resembling in material particulars with the respondent's registered trade mark of "Hafiz ka Multani Sohan Halwa". It was averred in the plaint that the respondent-plaintiff is confectioner of "Multani Sohan Halwa" since before independence, and his products on account of superior quality have acquired countrywide fame and popularity ; he also got his trade mark registered with the Trade Mark Registry of the Government of Pakistan ; the appellant and respondent No, 2 got themselves introduced in this business, only a few months before the institution of the suit, pirated the respondent-plaintiff's registered trade mark and started passing of their manufactured goods in packets bearing a striking similarity to the packets inscribed with former's registered trade mark.
' The appellant and respondent No, 2 resisted the suit on a number of grounds, which need not be discussed as in this appeal the parties are at variance only on Issue No,
6. This issue covers the controversy as to whether the defendants pirated the plaintiff's trade mark.
2. On a comprehensive examination of the evidence led by the parties the learned District Judge came to the conclusion that the wrappers used by the appellant and his partner are so similar to that of respondent No, I that they can pass off their products to any customer, as those of the respondent and accordingly decreed the suit against them.
3. A large number of wrappers used by the parties including the respondent's registered trade mark, have been placed on the file. It is admitted on both sides that Exh. P. 23, Exh. P. 24 and Exh. P.
25 are the appellants packages, whereas the packages Exh. P. 22, Exh. P. 26, Exh. P. 27 and Exh. P. 28 are the wrappers utilized by respondent No, 1 which correspond with his registered trade mark. The submissions of the appellant's learned counsel largely rested on the comparison of these two sets of documents to highlight the points of dissimilarity and distinguishing features of the two wrappers. The contention put forth by him was that the basic characteristics, general get up and the colour scheme of the appellant's wrappers are so widely different from respondent's registered trade mark that there is absolutely no possibility of the appellant's goods being mistaken for the products of the respondent.
4. I have carefully examined these wrappers and gone through the evidence. The wrappers Exhs. P.
23, P. 24 and P. 25 are similar in inscription, colour scheme and design and differ only in sizes likewise the packages Exhs. P. 22, P. 26, P. 27 and P. 28 vary in sizes otherwise they are the true copies of the respondent's registered trade mark. For the facility of reference, I have picked up Exh.
P. 25 and Exh. P. 22 only which were also referred to by the learned District Judge in the impugned judgment.
5. I have found that the word "Hafiz" , exactly in the same colon scheme, figures on both the packages. Of course, in Exh. P. 25 "Hafiz" is written in a crescent with a star, flanked by two arches, placed above the two spikes of the crescent and further two wheat-corns have been shown circulative on each of the two sides of the crescent. Four spherical clews also appear on each of upper ends of the wheat corns. On the other hand, in Exh. P. 22 the word "Hafiz" is written in a circular chain and underneath it, are to be found the words "Ka Multani Sohan Halva". In Exh. P. 25 below the word "Hafiz" has been inscribed the words "Bashir Ka Multani Sohan Halva".
' Despite these points of dissimilarity I find that the two wrappers, in colour scheme, get up, and general appearance are so similar that it is most likely to deceive and cause confusion in the minds of a customer. Apart from other visual resemblances, in material respects, I feel that the words "Hafiz Ka" and "Sohan Halva" are the dominant features remarkably akin to each other, in the two wrappers phonetically as well in appearance. In such like cases the test of the infringement of registered mark, as laid down by a Division Bench in Ram Kumar Jalan v. R. J. Wood and Co. Ltd., (1) is whether the unwary purchaser is likely to be deceived. This criterion was followed by another Division Bench of this Court in Insaf Soap Factory v. Lever Brothers Port Sunlight Ltd. (2) and it was observed :- "......We are thus of the opinion that the criterion laid down by this High Court in Ram Kumar Jalan v.
R. J. Wood and Co., that in cases of infringement of trade mark the test is whether the unwary purchaser is likely to be deceived into purchasing the goods of the person infringing the trade mark as the goods of the owner of the trade mark still holds good. Not much weight can, therefore, be attached to the few points of dissimilarity between the plaintiff's and defendant's wrappers to which our attention has been drawn (1) A 1 R 1941 Lab. 263 (2) P L 11 1959 Lab. 381 by the learned counsel for the appellant because the points of similarity in them are so great that an unwary purchaser is likely to be deceived in purchasing the defendant's goods as that of the plaintiff.'"
6. While determining the question of infringement of the respondent's trade mark, it is to be seen whether the public at large and not that an intelligent section of the public would be confused and misled. Sir George Jessele M. R. In Guardian Fire and Life Assurance Co. v. Guardian and General Insurance Co., Ltd. (1) maintained :- "The public are careless, and it is no use supposing that if they paid a very moderate attention to names they would see they were not the same, but only similar, but they have in fact been deceived."
Whether the wrapper Exh. P. 25 is calculated to induce a buyer to purchase the products packed therein, as the one confected by the respondent, a common purchaser not conversant with the distinction in the two products should serve as a criterion. Obviously, the person who is already B aware of the distinction would not be deceived. In this respect the testimony of Mr. Aftab Hussain Masood, Advocate, who because of close resemblance between the covers, mistook the appellant's goods for the respondent "Sohan Halva" is quite significant.
7. It is to be noticed that the goods manufactured by both the parties are of the same class and their business premises are also located in the same locality. It has been fully established by the evidence brought on the record by the respondent that he is running his business, since before partition of the sub-continent whereas the appellant's witness Hafiz Noor Din estimated the life of his business just more than two years. The learned District Judge on analysis of the appellant's evidence rightly held the he entered the market shortly before the institution of the suit. The respondent has produced more than enough oral and documentary evidence, that he has been making enormous publicity of "Hafiz Ka Multani Sohan Halva" through commercial service of Radio Pakistan and Pakistan Television Corporation and also by means of sign boards. It is thus not difficult to imagine that the respondent's "Sohan Halva" has earned reputation throughout the country. Even the appellant, who appeared as his own witness, in his statement admitted that the respondent's "Sohan Halva" is widely known and relished all over Pakistan. It is, therefore, reasonable to presume that the appellant and his partner entered into the field and introduced their products in the market, in covers close in similarly with the respondent's registered trade mark, just to appropriate his business by passing off their "Sohan Halva" as that of the respondent.
8. In the trade mark infringement cases, like the one in hand, the comparison of a disputed mark or label with the registered trade mark, by a judge, is a legitimate mode of discovering the truth. My visual examination of the two wrappers leaves no doubt in my mind that wrapper Exh. P. 25 is a colourable imitation of the respondent's registered trade mark though. There are some points of dissimilarity between the two wrappers, yet there is substantial resemblance between them, calculated to cause confusion and induce an average buyer to purchase the appellant's (1) (1880)
50 L J Ch. "Sohan Halva" under the impression that it was manufactured by the respondent's firm.
9. I entirely agree with the view taken by the learned District Judge and dismiss this appeal with costs.