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TMI Blog1983 (12) TMI 328X X X X Extracts X X X X X X X X Extracts X X X X ..... label was refistered relating back to 29th January, 1970 in class A restricted to Gujarat territory. On 7th October, 1970 the respondents applied for amendment of their registration application, to wit, that on their label the name Himatlal should be read as Vallabhdas alias Himatlal . On 11th January, 1973 the appellants aplied for rectification of the register on the ground that the respondents' label was deceptively similar to the appellants' registered trade mark. That application was rejected by the Deputy register of Trade Marks. The appellants' petition in this Court for setting aside the Deputy registrar's order was also dismissed by the learned single Judge on the Ground that the labels are not deceptively similar with no probability of causing confusion. Hence the present appeal. 4. The main bone of contention between the parties before us is whether the respondents' label is deceptively similar to the appellants' labels. To that end, it would be appropriate to krecakpitulate some well-established principles. In Kerly's Law of Trade Marks and Trade Names' (10th Edition, pages 456-457) appears the following passage:-- Two marks, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dea in the two marks is reasonably likely to cause confusion between them. In Amritdhara Pharmacy v. Satya Deo. , coming to the conclusion that to an unwary purchaser of average intellignece and imperfect recollection, kthe overall structure and phoetic similarity between the two names Amritdhara and Lakshmandhara was likely to deceive or cause confusion, it was held that if a person is put in a state of wonderment it is sufficient to hold that the mark is likely to deceive or cause confusion. In F. Hoffimann-La Roche Co. Ltd. v. Geoffirey Manners Co. Pvt. Ltd., , it was held that marks must be compared as a whole, the true test being whether the totality of the proposed trade mark is such that it is likely to cause deception or confusion or mistake in the minds of persons accustomed to the existing trade mark Microscopic examinations not called for. Both visual and phoetic tests must be applied. In Parle Prodjucts v. J. P. Co., , it was held that what must be considered are the broad and essential features of the two marks which should not be placed side by side in order to find out the differences in design. It is enough if the impugned mark bears an overan similarity t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wo buts are entriely different, Mr. Kale invited us to compare the lables by plcing them side by side and emphasided the dissimilarities in the two busts, namely, that in the apellants labels the is of a man (I) apparently in his forties, (ii) with a downturned longish moustache, (iii) wearing a turban and colsed collar coat and (iv) with a shawl across the shoulder whereas the respondents bust is (a) of a younger man in his apprent thirties, (b) clean-shavan and bare-headed, (c) wearing glasses and (d) an open-neck shirt. On such disimilarities Mr. Kale inviited us to hold that the respondents label is not .... 10. It is ture that htese dissimilarities in the two busts do emerge but they do so on a colse scrutiny of the labels placed side by side contrary to the well established principles. The question we must ask ourselves is : What would be the effect on the mind of a person of average intelligence and imperfect recollection? Applying that test with the well-established Principles . The would be the effect on the mind of a person of average intelligence and imperfect recollection? Applying that test with the well established principles summarised in para 5 earlier, there can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . There is also evidence on record that deception was actually caused and that confusion actually resulted. To start with the conduct of the respondents in applying for amendment of their registration so as to read Vallabhdas alias Himatlal . Is significant and reveals their anxiety to come as close to the appellants' labels on the sudden pretext that the pet-name of the 1st respondents partner Vallabhdas Laljibhai Patel (who had signed the resgistration application is infact Himatlal. On this aspect the learned single Judge has correctly observed that thee iis no evidence to support any such theroy. What is jore, evidence in the form of affidavits filed before the Deputy Egistrar by not less than 3 consumers and not less than 4 dealers with specfic instances. Bring to the forefront that deception was practised and confusion resulted as a result of the respondents label. The burden thereupon shifted to the respondents who sisignificantly chose to lead no evidence to establish the contrary and chose merely to content therselves by making a general denial in their affidavit before the Deputy Registrar. It was for the respondents to have established by cogent evidence before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n that suit, two dealers affidavits and one consumers affidavit and been affirmed before the learned Civil Judge (Junior Division). True copies of those affidavits were with leave of the Deputy Registrar taken on record, and considered by her. In addition the appellants filed beofre the Deputy Registrar taken on record, and considered by her. In addtion the appellants filed beforee the DEputy Registrar filed before the Deputy Registrar two dealers affidavits and two consumers affidavits with the correct heading and which declared before the Executive magistrate, Taluka Bhuj. Section 3(1)(a) of the Oaths Act, 1969 empowers all courts and persons having by law authority to receive evidence to administer oath. Section 6 of the Criminal Courts, Executive magistrates being one of them. Thus Exeutive Magistrates being empowered to administer oath, the swearing of certain affidavits before the Excutive Magistrate was legal and proper. No objection was taken by the respondents before the Deputy Registrar to the filing of any of these, affidavits. It is only now at the appellate stage, is it sought to be urged for the first time that these affidavits should not be considered . In view of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellate Court should therefore not disturb the judfment and order of the learned single Judge. We ask ourselves; Pray where at all arises the Deputy Registrar did not exercise any discretion under be Section 56 in rejecting the appellants application for rectification. It must be remembered that the concept of discretion is distinct from that of adjudication. When the Deputy Registrar rejected the appellants application for rectification on the ground that the two marks are not deceptively similar, she did not use any discretion but adjudicated upon the rival contentions of the parities. It would be trite to say that exercise of discretion can arisie in favour of a party when adjudication by the Registrar is sagainst that party. In the present case, the Deputy Registrar adjudication was in fact in favour of the respondents, with the result that there was no occasion for the Deputy Registrar to exercise any discretion. If the Deputy Registrar had held that the two marks were deceptively similar (which she did not ) but that in exercise of her discretion she did not consider it necessary to pass an order for rectification , it could be said that the Deputy Registrar having exercise ..... X X X X Extracts X X X X X X X X Extracts X X X X
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