Deceptive similarity in trade mark get-up can justify interim restraint where confusion among average purchasers is likely.

Deceptive similarity in trade mark and passing off disputes is assessed by comparing the marks and packaging as a whole, with emphasis on the likelihood of confusion among average unwary purchasers rather than proof of actual deception. Striking similarity in phonetic, visual, and get-up features can justify interim restraint against continued use of the impugned mark and containers. Prompt action after discovery, prior registration, and recent adoption by the defendant may defeat objections based on delay, laches, or acquiescence. Legal proceedings taken to protect a registered mark are not groundless threats, and related applications for leave to sue for damages may fail.

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Issues: (i) whether the defendant's mark and containers were deceptively similar to the plaintiff's mark and get-up so as to justify interim injunction against use of the impugned mark and packaging; (ii) whether the plaintiff was disentitled to interim relief on the grounds of delay, laches, or acquiescence; (iii) whether the defendant's applications complaining of threats and seeking leave to sue for damages were maintainable.

Issue (i): whether the defendant's mark and containers were deceptively similar to the plaintiff's mark and get-up so as to justify interim injunction against use of the impugned mark and packaging.

Analysis: The marks were to be compared as a whole, not by isolating a dissimilar prefix. The dominant common suffix, the phonetic resemblance, the visual similarity, and the almost identical writing style supported a prima facie inference of confusion. The containers also showed striking similarities in colour scheme, layout, placement of the marks, and overall get-up. The relevant test was the likelihood of confusion in the mind of an average unwary purchaser, and actual deception was not required to be proved.

Conclusion: The defendant's mark and containers were held to be deceptively similar, and interim restraint was warranted.

Issue (ii): whether the plaintiff was disentitled to interim relief on the grounds of delay, laches, or acquiescence.

Analysis: The plaintiff acted soon after discovering the defendant's use by first initiating criminal complaint proceedings and then filing the suit. The plaintiff had long prior use and registration of its mark, whereas the defendant's use was of recent origin. There was no material showing that the plaintiff knowingly encouraged the defendant to continue the impugned use or that there was inordinate delay sufficient to defeat interim relief. The balance of convenience also lay with the plaintiff because continued use of the similar mark and get-up would likely cause confusion and irreparable injury.

Conclusion: The objections based on delay, laches, and acquiescence were rejected.

Issue (iii): whether the defendant's applications complaining of threats and seeking leave to sue for damages were maintainable.

Analysis: The plaintiff's resort to legal proceedings to protect its registered mark could not be treated as groundless threats. The statutory protection against such proceedings did not assist the defendant in the circumstances, and the request for leave to sue for damages stood on the same footing.

Conclusion: The defendant's applications were rejected as misconceived.

Final Conclusion: Interim protection was granted in favour of the plaintiff, with restraint against use of the impugned mark and containers pending the suit, while the defendant's ancillary applications were dismissed.

Ratio Decidendi: For interim relief in a passing off and trade mark dispute, the court may grant restraint where the marks and get-up are deceptively similar and are likely to confuse the average unwary purchaser, and such relief is not defeated merely by prompt protest and resort to other remedies.

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