Ramchandra Raju, J.:— The plaintiff is the appellant It is a firm manufacturing and selling beedies under the name Taj Mahal and a device of Taj Mahal. The defendant in the suit is M/s. Golden Tobacco Co. P. Ltd. The suit was filed for a permanent injunction restraining the defendant company manufacturing and selling cigarettes under a name and device resembling the plaintiffs and from passing off their goods as that of the plaintiff and for nominal damages. The suit was dismissed by the lower court. Hence this appeal by the plaintiff.

2. The suit is filed with the following allegations: The plaintiff and his predecessors in interest have been carrying on business in the manufacture and sale of ‘beedies’ under the name and device of ‘Taj Mahal’ ever since the year 1910. The plaintiff firm and its beedies had acquired considerable popularity and reputation particularly in the regions of the States of Andhra Pradesh and Tamil Nadu by reason of the intrinsic quality of the beedies, the skill of the firm and the drive and initiative and the publicity given to the goods. Soon after the Trade Marks Act, 1940, came into force the said trade mark of ‘Taj Mahal’ both the name and the device were separately registered by the plaintiff's parent firm in 1944. While so, the plaintiff learnt in December, 1968 through one of it distributors in Andhra Pradesh that cheap cigarettes of the defendant company under the name and device of ‘Taj Mahal’ were being sold in Guntur and Vijaywada. Soon after, the plaintiff caused a lawyer's notice dated 18.1.1969 (Ex. A. 23) to be sent to the defendant company complaining that they are selling cigarettes under the same name and device of ‘Taj Mahal’ and its amounts to an invasion of the rights of the plaintiff. The defendant company replied stating that it had registered the name ‘Taj Mahal’ (not the device also) as its trade mark in the year 1951 for cigarettes and that it is not open to the plaintiff to complain. Thought the defendant company registered the name of Taj Mahal without the device of Taj Mahal, they did not use it until December 1968 and they had evidently abandoned it. When the correspondence was going on between the parties, in defiance of the protests of the plaintiff, the defendant company dumped its goods in Krnool district also. The name and mark Taj Mahal now adopted by the defendant company for its cheaper cigarettes at competitive prices are identical with or deceptively similar to the name and the mark of the plaintiff. The circumstances, go to show that the defendant had deliberately adopted that name and device for passing off cigarettes as those of the plaintiff with a view to cut into the trade of the plaintiff and capture their business and custom. The consumer public are likely to think in view of the striking similarity of the mark and the name that the cheaper cigarettes are the products of the plaintiff and to go for them even for a slightly higher price and give up purchase of plaintiffs beedies. Both ‘beedies’ and ‘cigarettes’ cater to the needs of the same smoking public. Both are manufactured with the same raw material viz. tobacco. The trade channel through which both reach the consumer public is the same being the ordinary shops and other retail and petty dealers. The plaintiff apprehends that their business would materially suffer by reason of the defendant company taking to sell their cigarettes with the same trade name and device of Taj Mahal. Therefore, the defendant company should be restrained from doing so by means of a permanent injunction.

3. Though originally the plaintiff prayed for taking accounts to determine the damages, that relief was abandoned later and nominal damages only are prayed for.

4. The defendant company contested the suit on the following grounds: The defendant company is the registered proprietors of the trade mark ‘Taj Mahal’ which was registered under No. 147004 in respect of cigarettes under the Trade Marks Act, 1940. The said registration was obtained on 18.1.1951 and was renewed for a further period of fifteen years from 18.1.1958 Hence it is not open to the plaintiff to maintain the suit. The registration of the plaintiff does not extend to cigarettes. Although the plaintiffs device is described as Taj Mahal the device is not that of the historically well known monument of Taj Mahal. Not only that, the picture of Taj Mahal as trade mark is in common and extensive usage in petty trades. The device adopted by the plaintiff looks more like a mosque and not as Taj Mahal. It is inconceivable and even ridiculous to suggest that cigarettes can be passed off as and for beedies. Cigarettes and beedies are two different commodities from the point of view of manufacture, packing, sale and the price of goods. In appearance and get up beedies and cigarettes are totally different. While cigarettes are machine made, beedies are hand made. The class of cigarette consumers are different from the class of beedi consumers. In any event the plaintiff is guilty of delay, laches and acquiescence and it is estopped from maintaining the suit. The defendant company introduced its cigarettes with Taj Mahal as trade name and mark as long ago as in the year 1959 and they were, on sale throughout India including the State of Andhra Pradesh and Tamil Nadu. The plaintiff was fully aware of this fact. Through their Advocates, M/s John and Row of Madras the plaintiff addressed a notice (Ex. B. 2) dated 30th May, 1959 calling upon the defendant to discontinue the manufacture and sale of the cigarettes bearing the said name and device. Since the claim of the plaintiff was thoroughly unfounded and baseless, the defendant continued to manufacture and market their cigarettes under the name of Taj Mahal. The defendant's sales of Taj Mahal cigarettes were effected openly and extensively and to the knowledge of the plaintiff. The defendant company has several trade marks, Panama, Diamond, Goldflake, Taj Chhap, Taj Mahal, Gaylord and Esquire for various cigarettes marketed by it. Depending upon the conditions of the market, the defendant company was putting into market their different brands, of cigarettes in varying quantities and at varying prices. Since 1959 till 1964, the defendant company marketed cigarettes with the trade name and mark of Taj Mahal. But thereafter it temporarily discontinued production of Taj Mahal cigarettes between 1965 and the middle of the year 1968 on some commercial considerations. It is not true that the defendant has deliberately adopted the trade name and the device of the plaintiff to pass off their cigarettes as that of the plaintiff and it does not amount to infringement of the trade mark and device of the plaintiff or passing off as the goods of the plaintiff.

5. It is not the case of the plaintiff that there is an infringement by the defendant company of their trade mark registered under the Trade Marks Act and the action is taken not for infringement of the trade mark. When the trade mark viz. the name and device of Taj Mahal, registered in the name of the plaintiff and device of Taj Mahal registered in the name of the plaintiff is for beedies and if the defendant company adopted the same name and device of Taj Mahal for their cigarettes and not for beedies it does not amount to infringement of the trade mark registered in the n???e of the plaintiff because the goods for which the trade mark was registered in me name of the plaintiff are different from the goods for which the defendant company adopted it, even assuming that the trade mark adopted by the defendant company is the same or deceptively similar to the one registered in the name of the plaintiff. The case of the plaintiff is that by long user and making known the name and device of Taj Mahal and causing it to be associated or identified with its goods of beedies they had acquired a quasi proprietary right to the exclusive use of the mark and name in relation to the goods of that kind, which right is invaded by the defendant company by using the same name and trade mark for their goods, cigarettes, which are allied in nature to the beedies and thereby inducing customers to buy the goods of the defendant company as the goods of the plaintiff manufacture.

6. Section 27(2) of the Trade & Merchandise Marks Act, hereinafter referred to as ‘the Act’) lays down that the provisions of the Act will not affect the rights of action against any person for passing off goods as the goods of another person or the remedies in respect thereof. The action relating to passing off goods is a common law remedy. The law relating to it is based almost entirely on case law. The principle of the law of passing off is that, no man is entitled to represent his goods as being the goods of another man. What we get from the case law on the subject is that an action for passing off would lie when the goods of the defendant are being passed off as the goods of plaintiff, which the plaintiff's manufacture when the plaintiff himself is not marketing such goods. With regard to the first category there cannot be any doubt that the trade of the plaintiff would be affected adversely since the consumers are likely to purchase the goods of the defendant thinking that they are the same goods which the plaintiff is marketing. In the case of the second category, a further question arises as to whether the trade of the plaintiff would adversely be affected by reason of the fact that the public are purchasing the goods of the defendant thinking that they are of the manufacture of the plaintiff even though the goods manufactured by the plaintiff are beedies and the goods manufactured by the defendant company are cigarettes. Though they are different goods, according to the case of the plaintiff, by the defendant company adopting the same name and symbol of Taj Mahal for their cigarettes as that of the plaintiff, which they have adopted for their beedies, their trade would be adversely affected in two ways, namely (1) the cigarettes offered by the defendant company being cheap cigarettes thinking that they are of the manufacture of the plaintiff, the consumers who were previously using the beedies of the plaintiff are likely to go in for the cigarettes of the defendant and thereby adversely affecting the sales of the beedies of the plaintiff, and (2) the cigarettes of the defendant being of an inferior quality if the public using the same thinking that they are of the manufacture of the plaintiff are likely to get their confidence in the quality of the plaintiff's manufacture eroded which will have an adverse effect on the sales of the beedies of the plaintiff.

7. In a passing off action the first thing to be established is whether the name and symbol used by the defendant and the plaintiff are the same or deceptively similar which induces the customers to buy from the defendant the goods not of the plaintiffs manufacture as the goods of the plaintiff's manufacture. In the present case, the name used by plaintiff for their beedies and the name used by the defendant for their cigarettes are the same viz. Taj Mahal both of them used the same device on their packets as that of Taj Mahal but according to the case of the defendant, the device used by the plaintiff is more like that of a mosque rather than that of a Taj Mahal and the device used by the defendant is purely a picture of the well known Taj Mahal. Therefore, both of them essentially are different and dissimilar and no question of deception would arise. In this connection it may be also noticed, which is not in dispute, that the defendant company had also registered a trade mark under the name of Taj Mahal and it does not relate to its device. The trade mark registered by the defendant is only the name Taj Mahal and not also its picture. Therefore, when the defendant company used both the name as well as the picture of Taj Mahal for their cigarettes they are not within their right of the registered trade mark. If the defendant merely used the name ‘Taj Mahal’ for their cigarettes there would not have been any difficulty. But they have used for their cigarettes not only the name ‘Taj Mahal’ but also its device. Therefore, if the device used by the defendant is the same or deceptively similar to the device, which has been in use by the plaintiff the plaintiff could have cause to complain, if other things are satisfied.

8. The lower court found that though there are some differences between the two devices they are of a minor nature and looked at from the stand point of an ordinary person both devices look similar and the defendant's contention that the plaintiff's device is more like a mosque and does not resemble the well known Taj Mahal which was adopted by the defendant should be rejected as they appear quite similar even to the naked eye. Accordingly, the lower court held that the name and device of Taj Mahal used by the defendant for their cigarettes resemble that of the plaintiff's name and device of Taj Mahal. So far as the name adopted by the plaintiff and the defendant for their products, it is the same viz. Taj Mahal. As regards the devices adopted by them, I have persued the same. They are not exactly the same in the sense that in the device of the defendant we got not only the picture of the building proper of the Taj Mahal but also the lawns in front of it. But in the device adopted by the plaintiff for their beedies the lawn portion is not there and there appears only the building portion. But prima facie both of them look as the device of Taj Mahal. Though they are not exactly similar they are almost similar which would easily make the public think that the two devices are the same.

9. It is also the case of the defendant company that even assuming that the trade mark and device adopted by the plaintiff and the defendant are the same or deceptively similar still there is no scope for the public to get deceived because not only the goods are different but they are also different in their get up. But as already mentioned above, the deception of the public is not in purchasing the cigarettes of the defendant thinking that they are purchasing the beedies of the plaintiff, but the deception relates to the likelihood of the public thinking that the goods of the defendant are the manufacture of the plaintiff firm.

10. It is necessary therefore to consider whether the plaintiff is entitled to maintain the case for passing off goods either on the ground that the cigarettes brought into the trade by the defendant being of cheaper variety the public thinking that they are the manufacture of the plaintiff there is likelihood of their shifting from beedies of the plaintiff to the cigarettes of the defendant and thereby adversely affecting the sales of the plaintiffs beedies or on the ground that by reason of the inferiority in the quality of the cigarettes of the defendant the public by thinking that they are the manufacture of the plaintiff their reputation is likely to suffer thereby affecting adversely the sales of the beedies of the plaintiff. We may now examine some decided cases on the subject.

11. In the text book by Kerly on Trade Marks and Trade Names (10th Edition in paragraph 16-34 on pages 389-390) we get the following passages:

“The right to prevent a defendant from passing off his goods as those of the plaintiff by the use of a trade mark exists only with regard to goods of the kind for which the plaintiff uses it, or to which the connection with his business suggested by the use of the mark extends.

But it the name, although not actually used by the plaintiff for the particular kind of goods to which the defendant has applied it, is so identified with the plaintiff that the defendant's use of it will induce the belief that his goods are those of the plaintiff, or that his business is an extension of, or an amalgamation with, or otherwise connected with, the plaintiff's business, and will thereby cause substantial damage to the plaintiff, an injunction may be granted, and possibly a prospective interference with the natural and probable extension of the plaintiffs business would be sufficient ground to entitle the plaintiff to relief. In cases where the parties are not both dealing with the same kind of goods, it may be more difficult to obtain an interlocutory injunction even if there is passing off, because of the difficulty of showing an immediate prospect of damage.”

12. From a reading of the above passage, it appears clear that the plaintiff in a case for passing off goods must not only establish the likelihood of deception but also show that thereby substantial damage will be caused to him and for a plaintiff to succeed he must satisfy both.

13. A certified copy of an unreported judgement of the Madras High Court rendered on 23rd November, 1910 in the Suit C.S No. 159 of 1909 between British American Tobacco Limited v. Sheik Ismail Sahib was marked in the lower court as Ex. 87. In that case the plaintiffs sought to restrain the defendants from passing off their goods, viz. beedies as the goods of the plaintiff's by using on them “Scissors” mark which has been identified with the goods manufactured and sold by the plaintiff viz. Packets of cigarettes bearing the brand of ‘Scissors’. Justice Wallace, who rendered the judgment has said that cigarettes and beedies may be correctly described as species of a genus which is distinct from the genus ‘Cigars’. Cigarettes and beedies are in many respect closely allied and in some respect different. It is clear that cigarettes and beedies are different things regarded from a trade point of view. Both consist of tobacco in wrappers but they are different in shape, cigarettes being cylindrical and the beedies a truncated cone. At beedies present are made of country tobacco and are wrapped in country leaves said to be Cuddapha leaves, (Tendu leaves). Whereas most cigarettes though not all, are wrapped in thin paper and the great difference between the beedies and cigarettes is that in the case of beedies one has to smoke a good deal more that is not tobacco than in the case of cigarettes. At present beedies are made of country tobacco whereas the ‘Scissors’ brand of cigarettes manufactured and sold by the plaintiffs are made in England and not of Indian tobacco. The beedi is undoubtedly a much cheaper article than cigarettes. ‘Scissors’ cigarettes are widely smoked even among humbler classes of the community. There is evidence that the ‘Scissors’ cigarettes has acquired a very great reputation and a very wide sale in India. The use of ‘Scissors’ brand by the defendants for their beedies is likely to result in their beedies also getting the name of ‘Scissors’ and so enable the defendants to pass off their goods as the goods of the plaintiff. After making these conclusions, Wallace, J. concluded thus:

“It is of course difficult to say to what extent a widespread use of the ‘Scissors’ label on the defendant's beedies would attract customers from the Scissors cigarettes to Scissors beedies. On the other hand, I am not in a position to say that it might not attract a certain amount of customers. But we have further to consider that the sale of Scissors brand of cigarettes depends a great deal upon the reputation of that brand and is likely to decline if that reputation is in any way affected, and it seems to me that the plaintiffs are justified in being apprehensive that if those beedies are widely sold under the Scissors brand and are in consequence believed to be the manufacture of the plaintiff that might affect the reputation of the brand and adversely influence their sales.”

14. Thus, the learned Judge came to the conclusion on the ground that the tobacco used in the beedies of the defendants, which was Indian, was of a much inferior quality that the tobacco used in the Scissors cigarettes of the plaintiff and therefore the reputation of the plaintiff was likely to suffer because of the inferior quality of the beedies as there was a likelihood of the customers thinking that the beedies were of the manufacture of the plaintiff because of the use of the same brand of Scissors.

15. Therefore, even according to this decision in a case for passing off not only it should be shown that there is likelihood of deception but it should also be shown that it would have the effect of adversely affecting the sales of the plaintiff's goods.

16. In the decision Thomas Bear & Sons v. Prayag Narain, AIR 1935 Allahabad 7 the facts are: The plaintiff company was carrying on the business of manufacture and selling of cigarettes and tobacco for many years and was doing extensive business in India. All the goods sold by the company bear the design of ‘elephant’ which is the trade mark of the company. In particular, the company was selling in India a brand of cigarettes called the ‘elephant, cigarettes and a brand of tobacco known as ‘Virginia Bird's eye’ in tins and packets bearing the elephant trade mark. While that was so, the defendant started the sale of chewing tobacco under the name ‘elephant’ and picture of elephant prominently displayed on the containers thereof. The plaintiff contended that purchasers were likely to be deceived by the picture of the ‘elephant’ on the defendant's tins and would suppose that the defendant's goods were manufactured or sold by the plaintiff and the plaintiff's business, goodwill and reputation were likely to sustain injury. It was held in that case that cigarettes and chewing tobacco are not of so similar a description as to be calculated to deception if sold with identical trade marks. This case also went up to the Privy Council in Thomas Bear & Sons v. Prayag Narain, AIR 1940 P.C 86. The Privy Council said that there can obviously be no monopoly in the use of the trade mark. A manufacturer, of cigarettes under an undoubted trade mark such as an animal, or any other device, cannot legally object to the use of the mark, on say, hats or soaps, for the simple reason that purchasers of any of the latter kinds of goods could not reasonably suppose, even if they were well acquainted with the mark as used on cigarettes. That its use on hats or soap denoted that these goods were manufactured or marketed by the cigarette manufacturers. Where a manufacturer of smoking tobacco is selling his goods under a certain trade mark the question whether the manufacturer, of chewing tobacco using simile mark is likely to deceive the public that they are purchasing chewing tobacco manufactured by the former will be a question of fact to be decided on the evidence adduced. The Privy Council said that the vital element in such a case is the probability of deception.

17. In Teju Singh;*… (Defendant) v. Shanta Devi… (Plaintiff)., AIR 1973 A.P 51 of this High Court rendered by Sambasivarao, J. (as he then was) the facts are: The plaintiff as well as the defendant are electric dry cleaners of clothes. The former had been trading under the name and style of ‘one day Electric Dry Cleaners’ on the Station Road, Kachiguda (Hyderabad). The latter started his trade a few yards away from the plaintiff's place of business on the same road under the name and style of “Only one day Electric Dry Cleaners”. The learned Judge held that there is likelihood of confusion or deception between the two trade names and if and when such scope for confusion or deception is established, it would not be further necessary to establish actual occurrence of confusion or deceit.

18. Having regard to the circumstances of the case, which the learned Judge was dealing, there was such a scope for confusion or deception and damage would be obvious. Therefore, the learned Judge came to the conclusion that the lower court was fully justified in granting the injunction even though there was no established proof of loss or damage actually caused to the plaintiff on account of the attempted passing off by the defendant.

19. There is yet another unreported decision of the Madras High Court, a certified copy of which marked in the lower court as Ex. A. 88 in National Carbon Co. (India) Limited v. J.P Mehta in O.S No. 184 of 1955 on the original sides of the Madras High Court dated 13th December, 1955. There the plaintiff was the registered proprietor of two trade marks both called “Eveready” one was registered for electric dry cell batteries and the second mark was registered for electric lamps and electric torches. Subsequently the defendant started using the “Eveready” trade mark by putting it on mantles designed for use in pressure lamps and bedroom lamps and other products. The mark used by the defendant was identical in all respects including spelling and type of lettering with the plaintiff's trade mark. Alleging that such use by the defendant was calculated to deceive the customers and the persons in the trade and cause them to believe that they were receiving the goods of the plaintiff, the plaintiff instituted the suit to restrain the defendant from using that mark by means of issuing a permanent injunction. It was found that the mark used by the defendant is a clear and conscious copy of the plaintiff's mark. It was a combined action both for the infringement of the trade mark and for action in respect of passing off goods. As regards the first, it was found that the registration of the trade mark in favour of the plaintiff confers a legal monopoly only as regards the kind of goods in relation to which the registration was make and did not extend to other goods. As the plaintiffs mark was registered only as regards bulbs, torches and batteries and did not cover mantles or bedroom lamps, it was held that the plaintiff cannot sue for infringement in respect of goods for which his mark was not registered although if he can make a case he might sue to restrain passing off. It was held in that case that in a passing off action protection extends not only to the goods of the kind for which the plaintiff uses the trade mark but also to the goods to which the connection with his business suggested by the use of the name extends. The learned Judge did not find it difficult for giving protection to the plaintiff in respect of mantles, but found it difficult for giving protection in respect of lamps by coming to the conclusion that they were sufficiently removed from the line of goods produced by the plaintiff.

20. In Imperial Tobacco Co. (India) Ltd. v. Mullaji Jamaluddin, AIR 1937 Nagpur 158 the Imperial Tobacco Co. India Ltd., sought a permanent injunction against Mullaji Jamaluddin of Jabalpur, for the infringement of the company's Railway trade mark which appeared on their packets of Railway cigarettes. It was contended that the design used by the defendant on the label of his beedi packets was a colourable imitation of the plaintiffs trade mark which they had been using since a long time. The defendant denied that his label was an imitation of the plaintiffs and pleaded that beedies were a different class of goods from cigarettes and the defendant's label could not be called an imitation of the other and therefore, no infringement of the trade mark had been made out. It was not contended there and it is also not the contention here that beedies can be mistaken for cigarettes. Obviously, it is so because their appearance and get up are quite different. The beedi is cone shaped and covered with a tendu leaf whereas cigarette is cylindrical in shape and covered with a thin white paper. Beedies are put up in bundles while cigarettes are sold in oblong packets. In that case, it was contended as in the present case, that the two products were of the same class and an ordinary purchaser would be deceive by the defendant's label into thinking that the beedies and cigarettes were made by the same manufacturer and hence there was a danger of the inferior quality of the beedies having an adverse effect on the reputation of the plaintiff's cigarettes. With regard to that contention, Grover, J. observed thus:

“This argument seems rather farfetched. If the customer found plaintiffs cigarettes good and his (plaintiff's) supposed beedies bad, why should he not go back to the cigarettes? If the cigarettes were too expensive for him he would slick to beedies in any case. The argument also assumes that these beedies are bad beedies in comparison with others of which there is no evidence. A customer would not look for the same quality in a beedi as in a cigarette, as prices are different. Then again it is well known that beedies are made in small local factories, and there is no instance of any manufacturer turning out both products, sc that I think that the alleged inference of the purchaser that the beedies and cigarettes must be the product of the same company is a remote one”.

21. With great respect there appears to be considerable force in those remarks of the learned Judge. As rightly pointed out in British American Tobacco Limited v. Sheik Ismail Sahib (unreported decision of the Madras High Court) in C.S No. 159 of 1909 a beedi smoker smokes a good deal which is not tobacco. He is accustomed to the taste of the wrapper also which is a tendu leaf. Normally smokers of beedies are not likely to shift to cigarettes even of the same manufacturer. Apart from it, in the present case, it is not the case of plaintiff's that Taj Mahal cigarettes of the defendant are of inferior quality. As a matter of fact, one of the witnesses of the plaintiff P.W 2 has admitted that he found Taj Mahal cigarettes to be good. What all was alleged by the plaintiff is that Taj Mahal cigarettes are cheap cigarettes in the sense that their price is less. It may be so compared to other costlier cigarettes. But nonetheless, it is an admitted fact that Taj Mahal cigarettes of the defendant company are three times costlier than the beedies of the plaintiff. Therefore, even assuming that there is a possibility of deception for the customers to think that the cigarettes of the defendant company are of the manufacture of the plaintiff, I do not think that the smokers who were accustomed to smoke the beedies of the plaintiff would go in for the cigarettes of the defendant company even if they think that the cigarettes of the defendant company are the manufacture of the plaintiff. I do not think that in that way there is a likelihood of the smokers of the plaintiffs' beedies shifting to the beedies of other manufacturers on the ground of inferior quality of cigarettes of the defendant company thinking that they are the manufacture of the plaintiff as not only it is not the case of the plaintiff or much less established that Taj Mahal cigarettes of the defendant company are inferior in quality but on the other hand they are found to be good.

22. As a matter of fact, it was not pleaded by the plaintiff that the good reputation of their beedies will by affected on account of the inferior quality of Taj Mahal cigarettes of the defendant company. P.W 14 who is one of the partners of the plaintiff from did not also say it in his evidence. On the other hand this is what he has stated in his evidence.

“We kept quiet till the filing of the suit for the simple reason that it did not hurt our business and also because the two business are different. A beedi is different from cigarettes in physical appearance as beedies are rolled in leaves and cigarettes are rolled in paper. Beedies are hand-made and cigarettes are machine made. Chura tobacco is generally used for making beedies and I do not know if flucured Virginia tobacco alone or re-dried tobacco alone is used for making cigarettes.

23. I cannot say if our beedies have any special quality. The smokers must know its particular quality. Generally a smoker must know its particular quality. Generally a smoker habituated to a particular brand would continue to smoke the same brand.

24. One of the directors of the defendant company was examined as D.W.I He has stated in his evidence that the tobacco used by them for manufacturing Taj Mahal beedies is flucured and re-dried tobacco.

25. Therefore, there is no question of the plaintiff's reputation being suffered on account of the Taj Mahal cigarettes of the defendant company even if they are likely to be misunderstood as the product of the plaintiff. The oral evidence adduced on behalf of the plaintiff is only to the effect that after the Taj Mahal cigarettes were brought into the market several people made inquiries thinking that they are also the product of the plaintiff. There is no evidence whatsoever that any actual damage was suffered by the plaintiff on account of the introduction of Taj Mahal cigarettes into the market by the defendant company. In the suit as a matter of fact only a sum of Rs. 100/- is claimed towards nominal damages. What was pleaded is only an apprehension. The conclusions are: In an action for passing off goods the protection extends not only to the same kind of goods which the plaintiff manufactures but also to the goods which are allied or cognate in nature when the facts in a particular case show that there is a likelihood of deception, viz. the customers to think that the goods of the defendants are of the manufacture or the products of the plaintiff. In the case of an infringement action under the provisions of the Trade & Merchandise Marks Act, to get relief it is enough if it is shown that the defendant has used a trade mark identical with or deceptively similar to the plaintiff's trade mark in respect of the goods for which the plaintiffs trade mark was registered. For a plaintiff to succeed and get relief in an action for passing off goods besides showing that the marks are deceptively similar it must be shown that on account of the deception the plaintiff is likely to suffer substantial damage. In the present case, as discussed above even assuming that there is a likelihood of deception for the customers to think that the cigarettes of the defendant company are of the manufacture of the plaintiff, it has not been shown that by reason of that deception the plaintiff is likely to suffer any substantial damage.

26. If that is so, the lower court has rightly refused to grant any relief to the plaintiff. Accordingly there are no merits in the appeal and it is dismissed with costs.