SHAMLAL AND ORS. Vs. PARLES OF PRODUCTS MANUFACTURING COMPANY (P.), LTD., THROUGH THE GENERAL MANAGER AND ANR.

JUDGEMENT

(1.) THIS is an appeal against an order of the Assistant Registrar of Trade Marks in an application filed by the appellants for the registration of their trade mark containing inter alia the expression Pearl and the letters, JJ in Glass 30 in respect of a designation of goods which was worded biscuits. When this application was advertised in the Trade Mark Journal of 1st June, 1963, the respondents filed a notice of opposition under Section 21 of the Act. The respondents are well -known manufacturer of biscuits. They are the registered proprietors of a reputed trade -mark consisting of the expression 'Parle's " under Mark No. 9202 which has acquired a great reputation in the market. They contended that the mark sought to be registered by the appellants was deceptively similar to their mark and that therefore its registration was barred under Section 12(1) and (5) of the Act. The respondents also contended that having regard to their extensive reputation acquired by the trade mark ' Parle's' the registration of the appellant's trade mark was also barred under Section 11 as likely to deceive or cause confusion.

(2.) THE Assistant Registrar of Trade Marks framed issues, whether the prior registration of Trade Mark No. 9202 was not a bar to the registration of the appellant's mark, whether Section 11(1) was not a bar to the registration of the trade -mark and whether the appellants were entitled to registration under Section 12(3) because of honest concurrent user. After considering the relevant evidence in the case, the learned Assistant Registrar found that the mark sought to be registered by the appellants was deceptively similar to the mark of the respondents and was likely to cause confusion and that the motive of the appellants was not honest as they wanted to pilfer for themselves the reputation of the respondents, and dismissed the application. Aggrieved by this order, the applicants before the Assistant Registrar of Trade Marks have now filed the appeal.

(3.) ON a consideration of the case -law and the facts of the case, I am of the view that the appellants have not discharged the onus which lies on them of proving that a simultaneous, normal and fair use of the competing marks will not lead to confusion or deception among the members of the public. The finding of the Assistant Registrar is correct and cannot be assailed in this appeal.