9911796707
TMI Blog1990 (4) TMI 296X X X X Extracts X X X X X X X X Extracts X X X X ..... k as 1940 and 1946. These trade marks distinguish the goods of the respondents from similar goods in the market. According to them a typical feature of their trade mark is a bird sitting on a twig. 3. On 26th March, 1971 National Chemicals and Colour Co., the appellants applied for registration of a trade mark featuring two birds and the words 'Bul Bul' on it. They applied for registration of this trade mark in respect of the goods falling in Cl. (2) of Schedule IV of the said Rules. The appellants, however, dropped the picture mark which they wanted to register, they obtained registration of only the words 'Bul Bul'. This trade mark was registered in the Trade Mark Journal dated 16th of September, 1973. The trade mark did not contain any device or picture. 4. On or about 11th of May, 1973 the appellants applied for the registration of a trade mark consisting of a device of two birds-- one partially hiding the other, sitting on a twig with the word 'Bul Bul' written on its bottom. The registration was applied for in respect of goods falling in Cl. (2) viz. colours. The appellants applied for the registration of this trade mark for the States of Maharas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sought to be registered by the appellants consists of a picture of two birds sitting on a twig. One bird is partially hidden by the other bird. The words 'Bul Bul' are written on either side of the two birds -- Bul on one side and Bul on the other side. TRADE MARK The word mark 'Bul Bul' is already registered. As against this, the registered trade mark of the 1st respondent consists of the picture of a single Bird sitting on a twig with the words 'Robin Ultra Marine Blue'. They also have a registered trade mark consisting simply of the picture of a bird sitting on a twig. The two birds on the proposed trade mark of the appellants are very similar in appearance to the bird in the trade marks of the respondents. 8. Both the trade marks cover goods of the same description because the registered trade mark of the 1st respondents is in respect of goods falling in Cls.(1), (2) and (3) of Schedule IV white the goods for which the appellants are seeking registration of the trade mark are goods falling in Cl. (2). 9. Under S. 11(a) of the Trade and Merchandise Marks Act, 1958 a mark, the use of which would be likely to deceive or cause confusion shall n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he words 'Bul Bul' as a part of it. And these words are different. But, in our view, this makes no difference to the overall impression which the two trade marks give. We agree with the learned single Judge that what would normally be retained in mind, after looking at the trade marks, would be the picture of a bird sitting on a twig. Whether the picture carries the legend 'Bul Bul' or 'Robin' does not make much difference to the overall similarity of the two trade marks. 13. In the matter of an application by the Danish Bacon Co. Ltd. to register their trade mark, which is a case reported in 51 RPC page 148, Danish Bacon Co. Ltd. applied for registration of two different device marks, consisting of representation of pigs, one being a picture of a sow and three little pigs in respect of pig products (for food) and the other being a picture of three pigs in respect of bacon and pig products for food . The applications were opposed by John Morrell and Co. Ltd., on the ground that the marks would conflict with their own Trade Marks, one being a picture of three pigs, but quite different from the Applicants' picture of three pigs, and the other consist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trade marks was very distinct. The registered trade mark which was of 'Brods', well known distillers of worldwide repute for gin, rum and wine, the mark was a cat on top of a barrel with Old Tom across it, the cat being in a militant attitude. This device was very different from a reclining cat with a bottle in front of it which was sought to be registered. The Court said that there was no possibility of any confusion between the label which was proposed to be registered and the Broods' mark was a barrel on which the cat stood in militant posture. This was absent in the mark sought to be registered, which had a very gentle cat with a bottle in front of it. The court said that there was no resemblance at all which would lead to any deception. 16. In the case of F. Hoffimann La Roche and Co. Ltd. v. Geoffrey Manners and Co. Private Ltd., , the Supreme Court has laid down test for determining whether one mark is deceptively similar to another. It has held that the marks must be compared as a whole. It is not right to take a portion of the word and say that because that portion of the word differs from the corresponding portion of the word in the other case there is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o are likely to buy these goods. , The appellants in this connection pointed out that the trade marks of the 1st respondents were used in connection with laundry blue which could be purchsed across the counter, while their colours were designed for industrial use and were not normally sold across the counter. The Deputy Registrar, however has upheld the conention of the 1st respondent that their goods are also for industrial use and not merely for sale across the counter for ordinary customers. Therefore it cannot be said that the class of customers must be necessarily different. 19. The appellants also point out the difference in the price of the goods of the appellants and the respondents. The goods are not identical.They do not bear comparable prices. But the goods are of the same class. What is more important, there is a likelihood of confusion in the minds of customers. The goods manufactured by the appellants may be mistaken for the goods manufactured by the 1st respondents. 20. The 1st respondents have produced material to show that they are well established manufacturers of colours of very long standing. They have had substantial sales right from 1940 onwards. While t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere supplied under the invoices. So on his factual position also the learned single Judge has disallowed the plea of honest concurrent user, there being no other evidence to show that the picture mark was in fact used on the goods of the appellants since 1969. We do not see any reason to come to a different conclusion. 23. It was next urged that the Registrar had exercised his discretion in granting registration to the appellants 'mark' and that we should not lightly interfere with the discretion so exercised by the Registrar. In this present appeal however, the only question which arises is whether the discretion, assuming that it has been exercised by the Registrar, is wrongly exercised; and whether the learned Judge was right in interfering with that discretion. If we come to the conclusion that the learned single Judge was in errors in interfering with the discretion exercised by the Registrar, it would be competent for us to set the matter right. We however, agree with the learned single Judge that the Registrar was clearly wrong in coming to the conclusion that he did reach. It is pointed out by Mr. Tulzapurkar, learned counsel for the 1st respondent, that the deci ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
