scheme and the way in which the articles are packed. We are of the view that the impression regarding the colour scheme and the getup in the labels or container would get imprinted in the minds of the customers and that would carry in their mind in choosing the product by their appearance in the departmental shops or in the super market or in any other shop. The Supreme Court has repeatedly held that what has to be seen in the case of a passing off action is the mind of an unwary purchaser with average intelligence and imperfect recollection. When such a person goes to the market for the purchase of an article, the entire layout including the brand name, colour scheme and getup of the container would be the guiding factor in the purchase of the article. We are prima facie of the view that the domestic articles are purchased not only by their brand names, but also by the colour scheme and getup of the container in which the goods are marketed. In our view, it would be totally unrealistic to focus one's attention to the brand name of an article ignoring the colour scheme and getup in the case of passing off action. In our view, even in the case of articles of daily use, like toothbrush, the same colour scheme and getup found in two articles with slight variation in brand name of the article would cause confusion in the mind of the user. It is true that a customer may select the oil on the basis of the brand name. However, if the articles of the same kind are displayed in a shop with slight variation in the trade name with the same colour scheme and getup, there is likelihood of deception to be caused in the mind of an unwary purchaser in the purchase of the article. The oil is not sold on medical prescription, but it is openly available and openly sold in the shops and departmental stores. We are of the view that if same colour scheme and getup of the labels of the plaintiff are used by the defendants with the trademark phonetically similar to the plaintiff with reference to the same kind of articles it would create confusion in the minds of unwary purchasers while purchasing the articles of one manufacturer as that of the other manufacturer. We are unable to accept the wide proposition submitted by the learned counsel for the respondents that since the plaintiff's articles are sold only by the trademark SVS on inverted triangle which are prominently displayed on the label, the colour scheme and getup are not important. We have already observed that it is not open to the plaintiff also to claim monopoly over the particular colour or getup. As rightly submitted by Mr. Sharma, learned counsel for the appellant, there cannot be serious objection for the use of same colours by the defendants with a different getup. Equally, there is no explanation from the defendants for their change in the getup and colour of the label from the one previously used and in the absence of any explanation we find that there is some force in the submission of Mr. Sharma, learned counsel for the appellant that the defendants have adopted in the label the same colour scheme and getup as that of the plaintiff with a view to cash on the reputation and goodwill of the plaintiff.
