M. Jagannadha Rao, C.J.

1. This is an appeal by the plaintiff, Kellogg Company against the order of the learned Single Judge in IA 2094/94 in Suit 432/94 dated 31.10.95. By that order, the learned Single Judge dismissed the application of the appellant for grant of temporary injunction under Order 39 Rule 1CPC against the respondent. The dispute pertains to trade-mark, emphasis being on trade-dress. Though reference is made in the grounds of appeal to the carton being a piece of artistic work within Section 2(c) of the Copyright Act, arguments were mainly focussed on trade dress.

2. The appellant Kelloggs Company sells Corn Flakes with cartons which describe the cartons as Kelloggs CORN FLAKES (the original and the best). The respondent is selling corn flakes using a carton more or less similar in size but with the title AIMS ARISTO CORN FLAKES written just at the place where appellants display the words Kelloggs CORN FLAKES. This is done at the left hand top of the carton. The appellants grievance in the suit as well as in the IA was that the carton was likely to confuse the buyers of corn-flakes and there was every likelihood of consumers purchasing the respondents goods in the belief that they were of the appellant. The learned Single Judge after referring to the case-law pertaining to trade dress, of the appellant dismissed the IA observing:

If the trade dress in this case is as was found in the above case (i.e. Colgate Palmolive Ltd. & Ors. v. K.F. Pattron, 1978 (RPL 635), I would have had no hesitation to accept the arguments of Mr. Anand. Applying the test laid down therein, I am of the view that the trade dress of the defendant in this case is entirely... different from the trade dress of the plaintiff and there is absolutely no scope for any confusion.

On that basis, the learned Judge stated that the appellant had not provedprima facie case nor balance of convenience and hence no injunction could be granted.

3. In this appeal, we have heard learned Counsel for the appellant at the stage of admission. Learned Counsel for the defendant was also present.

4. It was contended before us that the learned Single Judge, having accepted the legal principles relied upon for the appellant in respect of trade dress erred, on facts, in holding that there was no scope for confusion among the consumers. It was pointed that the size and shape of the carton was similar being rectangular, that in the words FLAKES in the appellants carton the words L AND A were joined together closely or rather touch each other, that respondent also described his goods as original and the best, that both contain a picture of the corn flakes, that there was a small square on the left hand top where the words Kelloggs CORN FLAKES were written inside the square, and that the respondent had also put a square on the left hand top with the words AIMS ARISTO CORN FLAKES. It was further stated that in all the cartons of Kelloggs in regard to various commodities, there was a red-band at the top which took off from the square on the left top and ran horizontally across on the front top into the right and to the other sides and respondent also used a similar red band taking off horizontally from the square on the left top. It was also argued that even in regard to the square on the left side top, Kelloggs used an inner red border, then a white gap, and then an outer green border, running all along the sides of the square while respondent was also using the same red and green borders for the square on the left top. It was argued that these similarities in dress were so clear that purchasers were sure to be misled. It was submitted that there was a presumption that the consumers memory was short and if a consumer had purchased a carton of appellants at one point of time, he would easily mistake the respondents carton for the appellants. It was further submitted that respondent had done this with dishonest intention.

5. Before we go into the above aspects, it is necessary to refer to a few more facts. If we look at the appellants carton, we find that the words Kelloggs is displayed very prominently in fairly big letters, above the words CORN FLAKES in the square on the left hand top. Then to the right of the words KELLOGGS CORNFLAKES there is the picture of the face of a hen, upto its neck. There is a bowl containing corn flakes and a cherry therein with a big spoon. Pouring of milk is shown into the plate. On the right side of the carton, it is stated prominently mat the flakes are 99% fat-free.

6. When we come to the respondents carton, we have in the left hand top rectangle the words AIMS ARISTO com flakes prominently written. We also have ISI in a smaller rectangular bracket but shown quite prominently below the rectangle on the left top, a plate blue in colour with corn flakes and cashew, etc. There is no picture of milk pouring into the plate.

7. In other words, while in the rectangle on the left hand top, the words Kelloggs corn flakes are prominent for the appellant, the words AIMS ARISTO corn flakes appear very prominently for the respondent, at the same place.

8. It is true that the appellant has referred to certain similarities in the size and shape of the carton, there being a square on the left top with words KELLOGGS CORNFLAKE; the words L&A being joined, border being red and green and a red band running round in the top horizontally. It is true that these similarities were not set out in the order. But in our prima facie view, the prominent display of the words Kelloggs in bold red letters in white background inside the square on the left-top appellants carton cannot go unnoticed by any buyer. We have to understand the learned Judges words trade dress of the plaintiff is entirely different, in that light, prima facie.9. The law relating to trade dress is very clear. Kerly in Law of Trade Marks (12th Ed, 1986, para 16.67) says that it is usually true in some degree that a traders goods are recognised by their general appearance, or get-up. Accordingly, resemblance or get-up is not uncommonly an ingredient in passing-off, and it is possible for imitation of get-up alone to amount to passing-off. Such cases are rare, since few traders rely on get-up alone to distinguish their goods, so that trade names and word trade marks are ordinarily present too, and the author says:

and in these days, in this country, a difference in names is enough to warn the public that they are getting one traders goods and not the others (Sapers v. Specters (1953) 70 RFC 173).

In Fisons Ltd v. E.J. Goddwin, 1976 RPC 653, the plaintiffs bag displayed the words Fisons Gro-Bag while the defendants bag contained the words Godwins Crop-Bag; and it was held that the prominence given to the name overshadowed the other similarities in get-up. The plastic bags were peculiar. The plaintiffs were manufacturers of the plastic bag filled with a peat-based compost from which plastic rectangules could be removed thereby exposing the compost beneath the plastic. Seedlings could then be planted in the compost so that the bag could function as containing growing element. The bag was partly over-printed with horticultural decoration and instructions and marked Fisons-Gro-bag. They were in market for 2 years. The defendants were peat merchants and got plastic bags produced with identical size and which bore over-printed instructions and decoration somewhat similar to those of the plaintiffs bag. While refusing injunction, Brightman J.,observed that even accepting that the plaintiffs had a get-up reputation in their growing bags and though there were obvious similarities between the bags in issue, it was inconceivable that any one seeing the defendants grow bag could fail to observe that it was a product of the defendants and that a normal purchaser could not be misled. He further said that if the Fisons Gro-bag had not contained the name Fisons or if the name Godwins had not been so prominently displayed, by the defendants, he might have reached a different conclusion. He doubted whether they could have done more to signify to a buyer that he was watching at a product of Godwins and not at a product of Fisons.

10. King and Co. Ltd. v. Gillard and Ors., 22. RPC 327, was also a case of similar get-up. The plaintiff was selling, for 15 years, dried materials for soup in packets of certain size, shape and printing put in steel boxes of a peculiar kind, with the words Edwards displayed thereon. Later, defendants started selling similar preparations for soup which were put up in a series of similar packets and boxes, and the name Gillards appearing at the place where Edwards appeared on the plaintiffs goods. The plaintiffs also complained against the wrapper of the defendants containing untrue statement as to Prize medals and awards in the same manner as the true statements of the plaintiff. Kekewich, J. refused to grant injunction and in the Court of appeal, while confirming his order, Romer L.J. observed that the word Edwards being printed prominently on the packets and the words Gillard printed on defendants packets, there was no scope for confusion in spite of the similarity in the packets and boxes.

11. In yet another case, relating to similarity in trade-dress, the Privy Council, in CadburySchwepper Pty. Ltd. v. The Pub-Squash Co. Ltd., (1981) RPC 429 confirmed the judgment of Powell, J., of the Supreme Court of New South Wales. In that case, the plaintiffs were selling lemon squash under the name Sole in greenish-yellow cans with a medallion type label. The defendants launched a lemon squash called Pub Squash and the label was of a medallion type bearing the words Pub Squash on the label. The cans were of the same size and shape with colour yellow as those of plaintiff. The proceedings of the plaintiff brought on the ground of passing off, unfair trading, etc. were dismissed. Judgment of Powell, J.,is elaborate and he held that the defendants had sufficiently differentiated their product by their name. On appeal to the Privy Council, it was observed that overemphasis on advertised description of a product might indeed lead to stifling of competition. Lord Scarman said:

But competition must remain free, and competition is safeguarded by the necessity for the plaintiff to prove that he has built up an intangible property right in the advertised description of his product, or, in other words, that he has succeeded by such methods in giving his product a distinctive character accepts by the market. A defendant, however, does no wrong by entering a market created by another and then competing with its creator. The line may be difficult to draw; but, unless it is drawn, competition will be stifled.

12. Their Lordships then said that the test applied by Powell, J., in the instant case was that one has to see whether the consuming public would be confused or misled by the get-up, the formula or the advertising of the respondents product into thinking that it was the appellants dissimilar product. Powell, J., held on the facts, that the public were not so deceived.

13. In Schewappers Ltd. v. Gibbens, (1905) 22 RPC, the appellant was selling soda water in bottles, with a neck label around then, the body of the label being of chocolate colour with a white border and a red medallion in the centre of the label. The respondents, subsequently, sold soda water in bottles with a somewhat similar neck lable round them in same colour and with a central red medallion. However, appellants labels showed Scheweppes soda water printed on them in white characters while respondents contained the name Gibbens Soda Water. Action by plaintiffs failed. It was held by the House of Lords that a fraudulent intent cannot be presumed in spite of the similarities in the bottles, labels, colour and medallion because the distinguishing feature of name adopted by defendants showed that they had no intention to deceive purchasers. Lord Halsbury LC said:

I should have thought if you looked at the two bottles together no human being could have mistaken one for the other. If Royal and Flag were sufficiently distinctive in the case to which the learned Counsel called our attention (Payton and Co v. Snelling, Lampard and Co., (17 RPC 628), I should have thought Gibbens and Schwappes are equally impossible to be confounded with each other.

14. Lord Halsbury said it was ridiculous to apply the principle of similarity in trade-dress in such a situation. He said:

I can quite understand a case in which, although colourably a defendant has introduced his own name, yet the nature of the wrapping up, the nature of the package itself, or, in this case, the shape of the bottle, may all have been so closely imitated that the mere introduction of some distinctive mark, to which no ordinary observer would have applied his mind, will not get rid of the obvious intention to pass one goods off as the other; but to apply the proposition to this case appears to me to be a little short of ridiculous.

15. It was held that the name of Gibbens was so plainly placed upon the bottle as it could possibly be and it was in the place where Schweppes was on the bottle of the appellant, and there was no intention to deceive.

16. The above case also answers the contention of fraudulent intent argued by the appellants Counsel before us. Similar views as to absence of fraudulent intent were expressed in Schwappes Pty Ltd v. The Pub-sqaush Co. Ltd.also, to which we have already referred and which came from New South Wales before the Privy Council (1981) RP 429)(PC).

17. In the present case, in spite of any other close resembleness in the cartons, the name AIMS written prominently on the respondents carton would, in our view, prima facie, as in case before Lord Halsbury show that there was no intention on the part of the defendant to play fraud by misrepresenting his goods, as the goods of the appellant. In that very case, Lord Halsbury emphasised the need to see the whole description on the goods as one whole and not the individual features in isolation. He said:

Inasmuch as you and certainly not to impute fraud without proof, you are not to suggest that people are fraudulently committing some commercial trick without sufficient evidence, and I cannot conceive here how anybody could gravely argue that the one thing could be mistaken for the other by anybody who looked as it.

The whole question in these cases is whether the thingtaken in its entirety, looking at the whole thing, is such that in the ordinary course of things a person with reasonable apprehension and with proper eyesight would be deceived.

18. Thus the above case also lays down that the trade dress or rather the whole thing must be seen in its entirety and not parts in isolation. It is not permissible, therefore, to say that the square on the left side top had a small red and green border or there was a red band horizontally and defendants carton if examined from close quarters, showed these features. Viewed as a whole, one can see that the words Kelloggs and AIMS are prominently displayed on each and therefore, there can be no confusion, prima facie.

19. That brings us finally to the question of the failing memory of the customer. The argument is that customers have short memory and that if the trade dress is similar, the customers are likely to get confused.

20. It has now been been held that there are limitations to the theory of imperfect memory. Halsburys Laws of England (4th Ed) (Vol. 48, para 139) says that this principle of imperfect recollection must not be pressed too far. It says:

The Tribunal must bear in mind that the marks will not normally be seen side by side and guard against the danger that a person seeing the new mark may think that it is the same as one he has seen before, or even that it is a new or associated mark of the proprietor of the formal mark. However, the doctrine of imperfect recollection must have not been pressed too far (Chappie Ltd.) v. Spratts Patent Ltd., (1954) 71 RFC 455 at 457). Marks are often remembered by general impressions of by same essential feature (De cordova Vick Chemical Co., (1951) 68 RFC 106 (PC) at 289 (on appeal 71 RFC 348. (CA).

21. In fact in Scheweppes Ltds. case above referred to Lord Halsbury said and if a person is so careless that he does not look, and does not,...... treats the lable fairly but takes the bottle without sufficient consideration and without reading what is written very plainly indeedup the face of the label on which the trade has placed his own name, then you certainly cannot say he is deceivedin fact, he does not care which it is. That would be the true interference which I think a person would draw from conduct so described.

22. Having dealt with the contention of imperfect memory of the customer, we shall now deal with the class of purchasers, which is also an important factor. Who are the persons who go to purchase Kelloggs corn flakes Prima facie, in our opinion, these people belong to a middle class or upper middle class and above who are fairly educated in English and are able to distinguish Kelloggs and what is not Kelloggs. In American Jurisprudence (2d) (Trade Marks) (Supp) para 19 (page 178) it is said that it is necessary to note the fact:

that customers for fasteners are sophisticatedand discerning, that defendant acted with good faith.

23. The case was one where customers were purchasers of fasteners in the automobile industry. (Standard Pressed Steel Co. v. Midwest Chrome Process Co., LDC III (US P/u 106). Again Kerly, Law of Trademarks (12th ed. 1980) (para 1706) says that:

If the goods are expensive and not of a kind usually selected without deliberation, and the customers generally educatedpersons, these are all matters to be considered (Pianolist) (1906) 23 RPC 774: Claudins Ash v.Invica, (1911) 28 RPC 597; 29 RPC 465 (CA) (HL) (dentists), Rysta (1943) 60 RPC 87).

24. In Pianolists case (1906) (23) RPC 774 an application was made for the registration as a trade mark of the word Neola for piano player, being a musical instrument included in class 9. Coming to know of this application, the registered proprietors of the trade mark Pianole who were registered for all goods in class 9, opposed the above application for registration. The Registrar overruled the objection and ordered registration. On appeal, Justice Parker said that having regard to the kind of customers for such goods and the distinction in the names, there was not likely to be any confusion and dismissed the appeal.

25. If that was so between Neole and Pianole, the case of Kelloggs and AIMS, in our prima facie view, presents no difficulty for distinct identification. Parker, J., in fact observed in the above case:

Of course, one knows that the persons who buy these articles are generally persons of some education,.... my opinion is, having regard to the nature of the customer, the article in question and the price at which it is likely to be sold, and all the surrounding circumstances, no man of ordinary intelligence is likely to be decieved...

We are, on the facts of the case before us, prima facie of the same opinion in regard to Kelloggs and AIMs.

26. Learned Counsel for the appellant placed reliance on Colgate-Palmolive Ltd. v.K.F. Pattron, 1978 RPC 635 (PC). In that case, the plaintiff was selling tooth paste as Tringate. The appellant used packages with colours red, white and dark blue, the respondents also used red, white and blue. It was held that the defendant borrowed features from the plaintiffs packaging, tubes and lables and the ordinary purchaser of normal memory was not to be expected to examine the goods keeping them side by side, and the get-up would cause confusion. In our prima facie view, this case is clearly distinguishable because, apart from the fact that the get-up was the same, the name used by the defendant was found to be deceptively similar. The question of imperfect memory was relevant there because the purchaser could be a person who would not discern whether the tooth paste was Colgate or Tringate.

27. We shall now deal with likewise Tavener Rutledge Ltd. v.Specters Ltd.(1989) (1959) RPC 83 cited for the appellant. There, no doubt, both parties sold sweets or fruit drops in decorated tins, No doubt the names, Taveners fruit flavoured drops and Specters fruit flavoured drops were somewhat different but, if one looks at the box, one can find the trade dress was too prominent and the names not that prominent. The learned Judge Dankwerts, J., held that it was possible that purchasers might get confused. Prima facie,the case goes against the view expressed by the House of Lords in the cases referred to above. Further this case has been placed in a special category by writers because here the picture of the sweets on the top of the boxes was so similar, spreading over the entire face of the box, and the learned Judge felt more impressed by that fact though the names were not so similar. This view appears from Halsburys Law of England 4th Ed, para 168 which says that we should look at the photographs of the boxes. Kerly says (para 16.6.7) that this case was treated as a case of deliberate copying offending plaintiffs copyright. It was also held that there was infringement of registered trademark. So far as passing off was concerned, it was seen as a case where having regard to the arrangement of the picture of the sweets on the top of the box, that a person with imperfect memory could be misled. Mondayv. Cxarey (1905) 22 RPC 273 cited for the appellant is also distinguishable. The appellants mark there was of an ace of clubs with the word club upon bottles which were sold with label Club Black Enamel, while defendants did likewise sell with ace of spades and label Hub Black Enamel. Injunction was granted on the ground of fraudulent get up. The words Hub and club were treated as similar and likely to create confusion. This case is also distinguishable.

28. In the result, on our prima facie conclusions, we reject the plea of similarity or likelihood of confusion, we reject the plea of fraud as well as the one based on imperfect memory. We are of the view, prima facie that even though the getup is similar, the different names Kelloggs and AIMS ARISTO prominently displayed, make all the difference and this is not a fit case for interference with the order of the learned Single Judge refusing injunction.

These are prima facie views and it is made clear that the suit will be disposed of on the basis of such evidence as may be produced therein without being influenced by anything said here. Appeal is dismissed.