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TMI Blog1962 (4) TMI 65X X X X Extracts X X X X X X X X Extracts X X X X ..... kshmandhara' was said to be distinctive to the article, and it was stated that the approximate annual turnover was Rs. 40,000/-. Notice of the application was given by the Registrar of Trade Marks, Bombay, and the Amrit dhara Pharmacy, a limited liability company and appellant before us, filed an application in opposition. In this application the appellant stated that the word 'Amritdhara' was already registered as a trade name for the medicinal preparation of the appellant, and that medicinal preparation was introduced in the market so far back as in the year 1901; on account of its great popularity many people advertised similar medicines with slight variations of name to pass off their goods as 'Amritdhara'. It was averred that the composite word Lakahmandhara' was used to denote the same medicine as Amrit, dhara'; and the single word dhara , it was stated, was first used in conjunction with 'Amritdhara' to denote the medicine of the appellant and the medicine 'Lakahmandhara' being of the same nature and to quality could be easily passed off as 'Amritdhara' to the ultimate purchaser. The appellant contended that as 'Amritdhara' was already registered and 'Lakshmandhara' being a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommenced to do business at Lahore in a particular ayurvedic medicine which was meant for alleviation for of headaches, diarrohea, constipation and other complaints. This medicine was first sold under the mark 'Amrit Ki Dhara', but in 1903 the name was changed to "Amritdhara', Pandit Thakur Datta Sharma formed a limited liability company in 1942 and the name 'Amritdhara' became a well-known popular name for the medicine. The sale of the medicine went up to about Re. 4 lacs a year. The business was done in Lahore but when partition came in 1947, the appellant established its business in Dehradun. The Registrar expressed the view that if the matter had rested on s. 8 and s. 10(1) of the Act, he world have no hesitation in allowing the opposition and dismissing the application. This could only mean that the Registrar was of the view that the name 'Lakshmandhara' so nearly resembled the trade mark 'Amritdhara' that it was likely to deceive the public or cause confusion to the trade. We are saying this because the High Court through that the Registrar did not express his own opinion whether the name 'Lakshmandhara' was likely to cause deception to the public or confusion to the ' trade. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent that his goods were sold mainly in, Uttar Pradesh and there were, at the most, only sporadic sales in other States. Taking that circumstance into consideration the Registrar passed an order allowing registration of 'Lakshmandhara' for sale in the State of Uttar Pradesh only. From the decision of the Registrar two appeals were referred to the High Court of Judicature at Allahabad under s. 76 of the Act: one appeal Was referred by the respondent and' the other by the appellant. The respondent complained of the registration being limited to Uttar Pradesh only and the appellant pleaded that registration should: have been refused altogether, The learned Judges of the High Court held that the words 'Amrit' and 'dhara' were common, words in the Hindi language and the combined word 'Amritdhara' meant current of nectar' or the flow of nectar'; the two words 'Lakshman' and 'dhara'were also well-known common words and combined, together they meant "current or flow of Lakshman'. The learned Judges, then said: "There- is no possibility of any Indian confusing the two ideas. Even phonetical differences are wide enough not to confuse anybody. The claim of the Amritdhara pharmacy that b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erwise, be disentitled to protection in a Court of justice ; or (b) be likely to hurt the religious susceptibilities of any class of the citizen of India or (c) be contrary to any law for the time being in force, or to morality. 10. Prohibition of registration of identical or similar trade mark.-(1) Save as provided in sub-section (2), no trade mark shall be registered in respect of any goods or description of goods which is identical with a trade mark belonging to a different proprietor and already on the register in respect of the same goods or description of goods or which so nearly resembles such trade mark as to be likely to deceive or cause confusion. (2) In case of honest concurrent use or of other special circumstances which, in the opinion of the Registrar, make it proper so to do he may permit the registration by more than one proprietor of trade- marks which are identical or nearly resemble each other in respect of the same goods or description of goods, subject to such conditions and limitations if any, as the Registrar may think fit to impose. (3) It will be noticed that the words used in the sections and relevant for our purpose are "likely to deceive or cause co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use that the two names 'Amritdhara' and 'Lakahmandhara' are in use in respect of the same description of goods, namely, a medicinal preparation for the alleviation of various ailments, Such medicinal preparation will be purchased mostly by people who instead of going to a doctor wish to purchase a medicine for the quick alleviation of ;their suffering, both villagers and townsfolk, literate as well as illiterate. As we said in Corn Products Refining Co. v. Shangrila Food Products Ltd [1960] 1 S. C. R. 968; the question has to be approached from the point of view of a man of average intelligence and imperfect recollection. To such a man the overall structural and phonetic similarity of the ,two names 'Amritdhara' and 'Lakshmandbara' is, in our, opinion likely. to deceive or ; cause confusion. We must consider, the overall similarity of the two composite words 'Amritdhara' and 'Lakshmandhara'. We do not think that the learned Judges of the High Court were right in Paying that no Indian would mistake one 'for the other. An unwary purchaser of average intelligence and imperfect recollection would not, as the High Court supposed, split the name into its component parts and consider the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the word and compare it with a part of theother Word; one word must 'be considered as a whole and compared with the other word as a whole................ I think it is a dangerous method to adopt to divide the word up, and seek to distinguish a portion of it from a portion of the other word". Nor do we think that the High Court was. right in thinking that the appellant was claiming a. monopoly in the common Hindi word 'dhara'. We do not think that is quite the position here. What the appellant is claiming is its right under s. 21 of the Act, the exclusive right to the use of its trade mark, and to oppose the registration of a trade mark which go nearly resembles its trade mark that it is likely to deceive or cause confusion. A large number of decisions relating to the use of composite words, such as Night Cap and RedCap, Limit and Summit, Rito and Lito, Notrate and Filtrate, etc. were cited in the High Court. Some more have been cited before us. Such decisions, examples of deceptive resemblance arising out of contrasted words, have been summarised at page 429 to 434 in Karly on Trade Marks, 8th Edition. No useful purpose will be served by referring to them all. As we have said e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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