M.M. Mirdhe, J.

( 1. ) This Appeal is preferred by the appellant who was the plaintiff in the Court below under Order 43 Rule 1(r), C.P.C. against the order dated 4-12-1991 passed by the Additional District Judge, Dakshina Kannada, Mangalore, in O.S. No. 11 of 1991, dismissing I.A. No. I filed by the appellant under Order 39 Rules 1 and 2, C.P.C. for grant of temporary injunction.

( 2. ) I have heard the learned counsel for the appellant and the learned counsel for the respondent fully and perused the records of the case.

( 3. ) The appellant had filed a suit in the trial Court for permanent injunction restraining the defendant from using the name "Officers Favourite" in relation to alcoholic beverages in any manner or any other name deceptively similar to the appellant's trade mark "Officers Choice" and from passing off respondent's goods for the goods of the plaintiff. The appellant also filed in I.A. for temporary injunction restraining the respondent from using the name "Officers Favourite" in relation to alcoholic beverages which is similar to the appellant's trade mark "Officers Choice". The respondent has appeared in the case and he resisted the suit and the I.A. The Court after hearing both sides has dismissed the I.A. filed by the appellant. Hence, this Appeal.

( 4. ) The case of the appellant is that it is carrying on the business in the manufacture of alcoholic beverages including whisky and marketing its product under the trade mark "Officers Choice" in a distinctive colour scheme and style. The respondent is passing off its product under the name "Officers Favourite" copying more or less the same colour scheme and style of the appellant's label/mark which is causing great confusion in the minds of the public and is severely affecting the business and reputation of the plaintiff. The respondent has contended that the suit itself is not maintainable and the respondent-firm manufactures and sells the whisky under the name and style "Officers Favourite" with four stars and that the respondent has developed a particular skill in the beverage and that initially during 1972 he began to manufacture Fenny under the trade names Coconut Fenny, Golden Star Fenny, Coastal Queen Fenny, Cashew Fenny and Palm Fenny and in due course of time he developed a particular type of malt whisky and he also developed a particular trade mark "Officers Favourite" for his product which is quite distinct and dissimilar from any other trade mark and that after using the name "Officers Favourite" in stylish slanted handwritten type of letters, 4 stars beneath it in a line have been indicated and below the stars the word 'Deluxe' in small letters and "Malt Whisky" in large sized letters is printed and below that an emblem has been designed resembling a pendant with the word 'Suvarna' inscribed in the centre thereof. He also contended that he was given an application in 1983 for granting manufacturing licence for IMFL and that the trade mark used by it is in existence much earlier to the mark which the appellant claims to have acquired and originated and there is no deception nor slavish imitation and that even for a naked eye and for a common man, the distinctions is very clear. Therefore, the case of the respondent is that the appellant has no prima facie case and the balance of convenience is not in its favour. After hearing both sides, the trial Court dismissed the I.A. of the appellant. Hence, this Appeal.

( 5. ) In Rangamma v. Krishnappa, 1968 (1) Mysore Law Journal 552 this Court has held as follows:

" Granting or refusal of temporary injunction rests on the sound exercise of discretion by the Court. Such exercise of discretion cannot be lightly interfered with by the appellate Court, unless it is shown that such exercise of discretion is unreasonable or capricious. That a different view was possible on the facts and circumstances of the case by itself will not be sufficient to interfere with the order. ( 1965) 1 Mys.L.J. 370 ref. to."

"An appeal lies from the order of a trial Judge granting or refusing to grant an interim injunction, but what the Court of appeal has to consider is simply whether or not the Judge who dealt with the matter has properly exercised the discretion which he undoubtedly possesses. The appellate Judge is not to approach the case as if he were the trial Judge. The granting or refusing of injunctions is a matter resting in the second discretion with the trial Court and consequently no injunction will be granted whenever it will operate oppressively, or inequitably or contrary to the real justice of the case. Besides, there are certain equitable principles also which govern the Courts in granting or withholding of the relief of injunction. One of the main considerations is the fairness or good conduct of the party invoking the aid of the Court. The Court denies the relief to a suitor who is himself guilty of misconduct in respect of the matter in controversy. The wrong conduct of the plaintiff in the particular matter or transaction with respect to which he seeks injunctive relief precludes him from obtaining such relief. Injunction will not be granted in aid of a possession secured by stratage or trick."

This is an appeal preferred by the appellant against the order of the trial Court refusing to grant temporary injunction. The order of the trial Court cannot be lightly interfered with by this Court unless the order is shown to be perverse, capricious or unjust. Similarly, the Court will have to consider whether the Judge who dealt with the matter has properly exercised the discretion which he possessed. Keeping in view the scope of the appeal against the order of temporary injunction as clarified in the above rulings quoted above, the Court will have to assess the merits of the contentions of both sides in this appeal.

( 6. ) In Gowrishankara Swamigalu v. Siddhaganga Mutt and Ors., 1989 (2) Karnataka Law Journal 548 this Court has dealt with the principles to be observed while granting an ad-interim order of injunction. It is held therein as follows:

"Grant of ad-interim injunction has to course through the following slots: (i) Prima-facie case, (ii) balance of convenience, (iii) irreparable injury to the plaintiff, and (iv) lastly all injunctions being absolutely discretionary in nature whether there was any overriding consideration that supported the refusal of the injunction by the Court below. The existence of a prima facie case in these matters of granting injunction is really the harbinger or the all clear sign to go ahead in investigating other aspects of the questions governing the grant or refusal of injunction. If there was no prima facie case at all or the case put forward was so weak and tainted having very little prospect of being accepted by the Court, further questions of balance of convenience and irreparable loss need not be considered since the plaintiff would fall at the very first stile itself. But if there was a prima facie case then other considerations governing the grant of injunction would come into play and will also have to be evaluated before granting or refusing the injunction. In other words the existence of a prima facie case or even a very strong prima facie case does not permit leap-frogging by the plaintiff directly to an injunction without crossing the other hurdles in between. Even granting that the plaintiff has an invisible prima facie case, he will not be entitled ex debitiae justiciae, to the grant of an injunction unmindful of other consequences. If the consequences of granting an injunction are detrimental in nature then an injunction will not be granted even though the plaintiff might have an unbeatable prima facie case."

( 7. ) It is the specific case of the appellant that the use of the label with the name "Officers Favourite" by the respondent amounts to passing off action by the defendant as the said label and its design etc., are deceptively similar to the trade mark "Officers Choice" of the appellant. It is not disputed in this case that the plaintiff is carrying on the business in alcoholic beverages and the respondent is also carrying on business in alcoholic beverages. It is also not disputed that the appellant is selling its product under the trade mark which is yet to be registered "Officers Choice" and the respondent is selling its product under the label and name "Officers Favourite". It is the case of the appellant that the label and the trade mark used by the respondent i.e. "Officers Favourite" are deceptively similar to the appellant's trade mark "Officers Choice".

( 8. ) In Teju Singh v. Shanta Devi, AIR1974 AP 274 their Lordships of the Andhra Pradesh High Court have held as follows:" Brief Note:- (A) The same principles which are applied in the case of an action for "passing off the goods are applied in a common law action for "passing off" the business name. Where a trader adopts a trading name including mere descriptive words of common use the Court will not readily assume that the use of the said word or name by another is likely to cause confusion. In such a case the plaintiff has to further prove that the name has acquired a distinctive meaning in connection with the business so that the use of this name by another is likely to deceive the public." It is for the appellant to prove that his name "Officers Choice" has acquired a distinctive meaning in connection with the business so that the use of that name by another is likely to deceive the public. The appellant has produced Exhibit A1, an application for registration of the trade mark label containing the words "Officers Choice" under the Trade and Merchandise Marks Act, 1958. He has also produced, Exhibit A2, an application filed by him for the word work "Officers Choice" under the Trade and Merchandise Marks Act, 1958, on 29-10-1990 in respect of alcoholic beverage including whisky. Both the applications are still pending. It is the case of the appellant that in or about 1988, one Cruickshank and Company Ltd., introduced a fanciful word mark "Officers Choice" to market its whisky. It is written in a particular distinctive style-logo- as shown in Exhibit A1. The averments of the appellant go to show that the trade mark at Annexure A1 and the words "Officers Choice" are got assigned by the appellant from that Cruickshank and Company Ltd., in or about 1988. The appellant has not produced any affidavit of any person from the Cruickshank and Company Ltd., to show that there has been such an assignment by that Company in favour of the appellant. Therefore, the trial Court was right in holding that the point that there has been an assignment by that Company in favour of the appellant is yet to be proved by the appellant.

( 9. ) In its counter affidavit, the respondent has averred that he developed a particular skill in the brewery and that initially during 1972 he began to manufacture Fenny under the names mentioned by him and in due course, he developed a particular type of malt whisky and he also developed a particular trade mark "Officers Favourite" which is quite distinct and dissimilar from any other trade mark. This assumes importance in view of the fact that the appellant is yet to prove the assignment of the trade mark in his favour by Cruickshank and Company Ltd. In Cardia Laboratories (P) Ltd. v. Kamath Atul and Co., AIR1991 Kant 303 , AIR1991 KAR 303 , ILR1990 KAR 2576 which is quoted by the trial Court it is stated as follows:

"Thus, the law is pretty well settled that in order to succeed at this stage the appellant had to establish user of the aforesaid mark prior in point of time than the impugned user by the respondents. The registration of the said mark or similar mark prior in point of time to user by the appellant is irrelevant in an action for passing off and the mere presence of the mark in the register did not prove its user by the persons in whose names the mark was registered and was irrelevant for the purposes of deciding the application for interim injunction unless evidence had been led or was available of user of the registered trade marks."

Relying on this ruling, the trial Court has rightly held that the user of the products in that trade in point of time will have to be considered. The case of the appellant is that it is only after 1988 it has been assigned with that mark whereas the respondent's case is that he is in business of manufacture and sale of whisky since 1972 and, therefore, the trial Court was right in holding that the respondent is the user of the product whisky in that trade earlier in point of time and the appellant has not proved the assignment of the trade mark in its favour by Cruickshank and Company Ltd.

( 10. ) It has been the contention of the appellant that the respondent's trade mark and letters are deceptively similar to that of the appellant's trade mark so as to mislead the customers and cause confusion in their minds and pass off the product of the respondent as the product of the appellant. The case of the appellant is that the respondent is passing off his goods under the trade mark and label "Officers Favourite" as the goods which are likely to be mistaken as the product of the appellant's product "Officers Choice". In Kaviraj Pandit Durga Dutt Sharma v. Navaratna Pharmaceutical Laboratories, AIR1965 SC 980 , [1965 ]1 SCR737 their Lordships of the Supreme Court have pointed out as to what is the difference between the action for passing off and the action for infringement of trade mark. Their Lordships of the Supreme Court have held as follows:

"An action for passing off is a Common Law remedy being in substance an action for deceit, that is, a passing off by a person of his own goods as those of another. But that is not the gist of an action for infringement. The action for infringement is a statutory remedy conferred on the registered proprietor of a registered trade mark for the vindication of the exclusive right to the use of the trade mark in relation to those goods. The use by the defendant of the trade mark of the plaintiff is not essential is an action for passing off, but is the sine quo non in the case of an action for infringement. No doubt, where the evidence in respect of passing off consists merely of the colourable use of a registered trade mark, the essential features of both the actions might coincide in the sense that what would be a colourable im itation of a trade mark in a passing off action would also be such in an action for infringement of the same trade mark. But there the correspondence be tween the two ceases. In an action for infringement, the plaintiff must, no doubt, make out that the use of the defendant's mark is likely to deceive, but where the similarity between the plaintiffs and the defendant's mark is so close either visually, phonetically or otherwise and the Court reaches the conclusions that there is an imitation, no further evidence is required to establish that the plaintiffs rights are violated. Expressed in 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 in which he offers his goods for sale show marked differences, or indicate clearly a trade origin different from that of the registered proprietor of the mark would be immaterial, 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."

In Parle Products (P) Ltd. v. J.P. and Co., Mysore, AIR1972 SC 1359 , (1972 )1 SCC618 , [1972 ]3 SCR289 , the Supreme Court has held that in order to come to the conclusion whether one mark is deceptively similar to another, the broad and essential features of the two are to be considered and 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. Further, the Supreme Court has held that 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.

( 11. ) In Com Products v. Shangrila Food Products, AIR1960 SC 142 , (1960 )62 BOMLR162 , [1960 ]1 SCR968 the Supreme Court has held as follows:

"The question whether the two marks are likely to give rise to confusion or not is a question of first impression. It is for the Court to decide that question. It is well recognised that in deciding a question of similarity between two marks, the marks have to be considered as a whole."

Further, it is held in the said ruling as follows:

"Again in deciding the question of similarity between the two marks, we have to approach it from the point of view of a man of average intelligence and of imperfect recollection. To such a man the overall structural and phonetic similarity and the similarity of the idea in the two marks is reasonably likely to cause a confusion between them."

( 12. ) In Ruston and Hornsby Ltd. v. The Zamindara Engg. Co., AIR1970 SC 1649 , (1969 )2 SCC727 , [1970 ]2 SCR222 the Supreme Court has held that the test as to likelihood of confusion or deception arising from similarity of marks is the same both in infringement and passing off actions.

( 13. ) It is the contention of the appellant that the style and manner of using the letters "Officers Favourite" and the use by the respondent are similar to the trade mark and logos of the appellant and they are likely to confuse a man of common intelligence. The photographs of the bottle of the product of the appellant with the label "Officers Choice" and the bottle of the respondent's product with the label "Officers Favourite" are produced. The similarity between the two is in the use of the word "Officers". The shape of the bottle containing the label and logo of "Officers Choice" is quite different from the shape of the bottle containing the label and logo of "Officers Favourite". In the bottle "Officers Favourite", there are four stars below the words "Officers Favourite" which are not to be found in the bottle of the appellant. On the other hand, in the bottle of the appellant, there is a flap of the uniform of the Officer. The name of the respondent is very distinctly mentioned on the bottle containing the product of the respondent as follows:" SHREE DURGA DISTILLERY" The name of the appellant is mentioned in a different style on its bottle. There is also a mark of a pendant below the words "MALT WHISKY" on the bottle of the respondent which is absent on the label in the bottle of the appellant. The Court is not required to keep both the bottles side by side and find out in how many words there is similarity and in how many words there is dissimilarity. An overall picture has to be taken if the two bottles are similar so as to make the bottle of the respondent to pass off as the bottle of the appellant. When the two photographs are compared, there is no such deceptive similarity either between the shape of the bottles or on the labels printed thereon so as to mislead the mind of a man of common intelligence to mistake the product of one person as the product of the other. Therefore, I do not think that the finding of the trial Court on this point is wrong or perverse. The trial Court has also relied on Andhra Perfumery Works v. National Flag Perfumery Works, 1965 (2) Mysore Law Journal 390 wherein it has been held that the plaintiff seeking the relief of temporary injunction has not only to make out a fair prima facie case but also to show that the factors of irreparable loss and balance of convenience are in his favour. Even on the point of irreparable loss, the appellant has failed to show that he has sustained any irreparable loss or he will sustain any such loss by not granting temporary injunction. On the other hand, Exhibits C and D go to show that his sales are on the increase. Therefore, there is no question of irreparable loss being caused to the appellant by not granting temporary injunction. The trial Court has considered all the aspects of the case and has come to the correct conclusion that the appellant has neither a prima facie case in his favour nor the balance of convenience in his favour. I do not see any grounds to differ with the view taken by the learned trial Judge.

( 14. ) Hence, I proceed to pass the following order:The Appeal is dismissed with costs.