LAKBIR SINGH Vs. BAKHAT SINGH

JUDGEMENT

(1.) Shri Bakhat Singh and others, trading as Sardar Trading Company (hereinafter referred to as the respondents) applied to the Registrar of Trade Marks. Delhi, for the registration of a trade mark consisting essentially of the device of a tiger and the word 'TIGER' in English in class 25 in respect of shoulder pads. M/s. Fancy Shoulder Pad Makers (hereinafter referred to as the appellants) filed opposition to the said application. The opposition was based upon the ground that the appellants were the proprietors of a registered trade mark consisting of the device of a lion in class 25 in respect of shoulder pads in the Union Territory of Delhi and that the proposed trade mark of the respondents was deceptively similar to the registered trade mark of the appellants and that the adoption of the appellants' trade mark by the respondents was dishonest. The Assistant Registrar while holding that the proposed trade mark of the respondents was likely to decieve the public into believing that the proposed trade mark of the respondents was the same as that of the appellants inasmuch as both the words 'Lion' and 'Tiger' were known in Urdu. Hindi and Punjabi as 'Sher'. but taking note othe fact that the appellants' trade mark was registered only for the Union Territory of Delhi, rejected the objections of the appellants to the registration of the respondents' trade mark for areas other than the Union Territory of Delhi and passed the following order:

(2.) Before considering the respective contentions of the parties, I shall refer to the findings of the learned Assistant Registrar about which there is no dispute. The learned Assistant Registrar has recorded the following findings:

(3.) The learned Assistant Registrar has also given a finding that except for the fact that both the lion and tiger were known by the name of Sher in Hindi, Urdu and Punjabi, the two marks are not similar. This finding is challenged by the appellants. According to the appellants, even the device in the two marks is deceptively similar. I, therefore, compared the two marks both as they appeared in the Trade Marks Journal as well as they appeared on the labels affixed to the shoulder pads. Applying the principle laid down by the Bombay High Court in Ciba Ltd. Basle Switzerland v. M. Ramalingam. AIR 1958 Bom 56. I am of the view that the two marks are deceptively similar although they might differ in some details. It may be stated that the tiger in the respondents' proposed trade mark is not distinctive and may easily be mistaken for a lion. Therefore, the similarity between the two trade marks not only lies in the common word 'Sher' by which both the devices are known in vernacular languages but also by reason of the resemblance of the devices in the two trade marks.