"7. Tested on the well recognized touchstone of the principle of deception, it would be apparent to the naked eye that any purchaser of tea with the usual imperfect recollection to which all humans are prone to, would be deceived when she comes across the tea packaged by the appellant.
8. It is the overall get up and similarity which has to be seen and not the minor variations because it is similarity which strikes and not the dissimilarities which distinguish when an ordinary person recollects an object seen in the past."
"Commonsense guides us that if two persons sell their product in same size rectangular shaped cuboid, nobody can urge that there is deception, but where the add-on grievance is to fabric sleeve used over the rectangular shaped cuboid, deception may occur if the overall similarity in the get up is of the kind that an ordinary purchaser, with the usual imperfect recollection is likely to be deceived. There is no case law cited, and we know of none that merely because a trademark is displayed on the packaging material, notwithstanding a striking similarity in the packaging material there would be no likelihood of deception. Whilst it may be true that in issues concerning trade dress the Courts have considered the display of a trademark, but it is only one of the various factors put in the weighing basket. It needs no argument to bring home the point reached by the learned Single Judge that the overall get up of the trade dress, even taking into account the display of the trademarks, is likely to cause deception; save and except to look at the packaging of the two competing products; and this is the reason why we have reproduced the coloured printout of the packaged product.
13. So striking is the theft by the appellant of the packaging used by the Kapurs that even an elite, educated, widely exposed and travelled person is likely to be deceived."