9911796707
TMI Blog1969 (4) TMI 111X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant : A. K. Sen, K. Jayaram and A. Thiagarajan For The Respondent : M. C. Chagla, N. K. Anand, M. P.Rao and O. C. Mathur JUDGMENT: The Judgment of the Court was delivered by Bachawat, J. The appellant is the sole proprietor of a trading concern known as Radha Co., The respondents Ambal Co., are a partnership firm. The respondents as also the appellant are manufacturers and dealers in snuff carrying on business at Madras and having business activities inside and outside the State of Madras. On March 10, 1958 the appellant filed application no. 183961 for registration of a trade mark in class 34 in respect of snuff manufactured in Madras. The respondents filed a notice of opposition. The main ground of opposition was th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 12(1) provides that save as provided in sub-section (3), no trade mark shall be registered in respect of any goods or des- cription of goods which is identical with or deceptively similar to a trade mark which is already registered in the name of a different proprietor in respect of the same goods or description of goods. The Registrar of Trade of Marks observed : In a composite mark the distinctive words, appearing on it play -an important part. Words always talk more than devices, because it is generally by the word part of a composite mark that orders will be given. Apart from that, the opponents have a registered mark consisting of the expression Sri Ambal. I have, therefore, to determine whether the expression Sri Andal, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tters patent appeal. The Divisional Bench of the High Court dismissed the appeal. The learned Registrar and the two courts below concurrently found that the appellant failed to, prove honest concurrent use so as to bring his case within s. 12(3). The present appeal has been filed by the appellant after obtaining special leave. The Registrar was of the view that the appellant's mark was not deceptively similar to the respondents' trade marks. He has expert knowledge of such matters and his decision should not be lightly disturbed. But both the courts have found that he was clearly wrong and held that there is a deceptive similarity between the two marks. In -an appeal under art. 136 of the Constitution the onus is upon the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring in mind the conclusions of the learned Single Judge and the Divisional Bench, we are satisfied that there is a real danger of confusion between the two marks. There is no evidence of actual confusion, but that might be due to the fact that the appellant's trade is not of long standing. There is no visual resemblance between the two marks, but ocular comparison is not always the decisive test. The resemblance between the two marks must be considered with reference to the ear as well as the eye. There is a close affinity of sound between Ambal and Andal. In the case of Coca-Cola Co. of Canada v. Pepsi Cola Co. of Canada Ltd.( (1942) 59 R.P.C. 127.), it was found that cola was in common use in Canada for naming the beverages. The dist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew of the distinct ideas conveyed by the two words a mere accidental phonetic resemblance could not lead to confusion. In this connection he relied on Venkateswaran's Law of Trade and Merchandise Marks,_ 1963 ed., page 214, Kerly's Law of Trade Marks and Trade Names, 9th ed., page 465, art. 852 and the decision Application by Thomas A. Smith Ltd., to, Register a trade mark((1913) 30 R.P.C. 363.). In that case Neville, J. held that the words limit and summit were words in common use, each conveying a distinctly definite idea; that there was no possibility of any one being deceived by the two marks; and there was no ground, for refusing registration. Mr. Sen's argument loses sight of the realities of the case. The Hindus in th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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