SCOTCH WHISKY ASSOCIATION Vs. DYER MEAKIN BREWERIES LTD

JUDGEMENT

(1.) This appeal under Section 109 of the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as the 'Act') is directed against the order of Assistant Registrar of Trade Marks, Delhi dismissing the opposition filed by the appellant and ordering. the registration applied for by the respondent.

(2.) The respondent filed an application to register a trade mark consisting of a label containing the bust portrait of a Scottish Highlander and the words "Highland Chief" in Class 33 in respect of Whisky. After its advertisement in the Trade Marks Journal of 16th March, 1964 the appellant filed a notice of opposition.

(3.) The appellant is a body corporate, incorporated under the United Kingdom Companies Act, 1948. It does not itself carry on the trade but includes amongst its members leading producers and sellers of Scotch Whisky. One of the principal aims of this Association is to protect the interests of the producers and sellers of Scotch Whisky. It is stated in the notice to opposition that the description 'Scotch Whisty' is not generic but relates solely to the geographical origin of the product in relation to which it is used. It is also stated that the brand name 'HIGHLAND CHIEF' when used in relation to a product described as 'matted whisky' will be assumed by the purchasers to relate to a product of Scotland since the highlands of Scotland are an area world famous for the production of whisky. It is further stated that the impression of the purchasers that the words 'HIGHLAND CHIEF' indicate that the whisky in relation to which they are used comes from Scotland will be confirmed if they see these words used on the labels the subject of the application of the respondent, since it bears prominently the device of the head and shoulders of a gentleman dressed in Scottish highland costume wearing mter-alia feather bonnet and plaid and edged with tartan a well known symbol of Scottish origin. It is thus submitted that the mark in question would be likely to deceive or cause confusion; its use would be contrary to law for the time being in force and it would be disentitled to protection in the Court.