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Issues Involved:
1. Deceptive similarity of trade marks. 2. Likelihood of confusion among consumers. 3. Honest concurrent use of the trade mark. 4. Exercise of discretion by the Registrar of Trade Marks. Detailed Analysis: 1. Deceptive Similarity of Trade Marks: The primary issue revolves around whether the trade mark proposed by the appellants, featuring two birds on a twig with the words "Bul Bul," is deceptively similar to the respondents' registered trade mark, which features a single bird on a twig with the words "Robin Ultra Marine Blue." The court emphasized that trade marks should not be compared side by side to identify differences but should be assessed based on the overall impression they leave on the public. The court cited Kerly's Law of Trade Marks and Trade Names, stating that "Two marks, when placed side by side, may exhibit many and various differences, yet the main idea left on the mind by both may be the same." The court concluded that both trade marks give a similar overall impression due to the bird-on-twig imagery, despite the different words "Robin" and "Bul Bul." 2. Likelihood of Confusion Among Consumers: Under Section 11(a) of the Trade and Merchandise Marks Act, 1958, a mark that is likely to deceive or cause confusion cannot be registered. The court found that the appellants' trade mark could create an impression that their goods are manufactured by the respondents, leading to confusion among consumers. The court referenced several cases, including the Danish Bacon Co. Ltd. case and the James Chadwick & Bros. Ltd. case, to illustrate how similar imagery in trade marks can lead to consumer confusion. The court determined that the appellants' trade mark is likely to cause confusion due to its similarity to the respondents' trade mark. 3. Honest Concurrent Use of the Trade Mark: The appellants claimed honest concurrent use of their trade mark since 1969, which could allow registration under Section 12(3) of the Trade and Merchandise Marks Act, 1958. However, the court found that the appellants were aware of similar registered trade marks when they first applied for registration in 1971. The appellants initially dropped the device of two birds on a twig and only registered the word "Bul Bul." They later reapplied for the picture mark in 1973. The court concluded that this does not constitute honest concurrent use, as the appellants knowingly used a similar device despite being aware of existing trade marks. The court also noted that there was no evidence of the picture mark being used on the appellants' goods since 1969, as the invoices only referred to the "Bul Bul" brand without the picture mark. 4. Exercise of Discretion by the Registrar of Trade Marks: The appellants argued that the Registrar had exercised discretion in granting registration and that the court should not lightly interfere with this discretion. However, the court clarified that the Registrar's decision was an adjudication, not an exercise of discretion. The Registrar had to determine whether the proposed trade mark was deceptively similar to the respondents' registered trade mark and whether there was honest concurrent use. The court referenced the case of Hiralal Prabhudas v. M/s. Ganesh Trading Company, which distinguished between adjudication and the exercise of discretion. The court concluded that the Registrar's decision was clearly wrong and that it was necessary to set it aside on appeal. Conclusion: The court upheld the decision of the learned single Judge, agreeing that the appellants' trade mark is deceptively similar to the respondents' trade mark and is likely to cause confusion among consumers. The court also agreed that there was no honest concurrent use of the trade mark by the appellants. Consequently, the appeal was dismissed with costs.
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