1972 (11) TMI 103 - HC - Indian Laws

Summary

Issues:
1. Opposition to the registration of a trade mark based on similarity with an existing registered trade mark.
2. Interpretation of Sections 11(a), 12(1), and 18 of the Trade and Merchandise Marks Act, 1958.
3. Consideration of dishonest trade practices in adopting a deceptively similar trade mark.

Analysis:

1. The case involved an opposition by M/s. Fancy Shoulder Pad Makers against the registration of a trade mark by Sardar Trading Company, citing similarity with their registered trade mark consisting of a lion device in class 25. The Assistant Registrar allowed the registration for areas outside the Union Territory of Delhi, noting the commonality of the words 'Lion' and 'Tiger' in Hindi, Urdu, and Punjabi. The appellants filed an appeal against this decision.

2. The Assistant Registrar found that the respondent's proposed trade mark was likely to deceive or cause confusion, barred by Sections 11 and 12(1) for the Union Territory of Delhi. The appellants contended that Section 12(1) should bar registration even outside Delhi, but the court held that the limitation imposed by the Registrar under Section 18 restricted the application of Section 12(1) to Delhi only.

3. The appellants argued that Section 11(a) should bar registration outside Delhi due to deceptive similarity, but the lack of evidence of use of the appellant's trade mark outside Delhi weakened this argument. The court also dismissed the appellant's attempt to bring the case under Section 11(e) for protection disentitlement.

4. The final contention was the allegation of dishonest trade practice by the respondent in adopting a deceptively similar trade mark. The court found merit in this argument, noting the similarity in devices, common words, and the respondent's awareness of the appellant's mark's reputation. The court held that the respondent's actions amounted to dishonesty, and the Assistant Registrar should have refused registration based on this ground under Section 18.

5. The court allowed the appeal, setting aside the Assistant Registrar's order, emphasizing the dishonesty in adopting a deceptively similar trade mark. The judgment highlighted the importance of preventing dishonest trade practices and upheld the appellant's opposition to the registration of the respondent's trade mark.