KIMBERLY CLARK CORPORATION Vs. BAYS CHEMICALS

JUDGEMENT

(1.) MESSRS . Kimberly Clark Corporation were the owners of the trade mark Kotex, a mark relating to sanitary napkins and belts, which were being sold by the firm in international markets. It appears that this mark had a previous history. The original registration relating to a Wisconsin Corporation, which effected this registration at Calcutta in 1944. In 1940, this country legislated a new measure with regard to the registration of trade marks (Indian Trade Marks Act, 1946) and the International Cellucotton Products Co., obtained rights with regard to this particular mark. Kimberley Clark Corporation (appellants) are the successors in respect of this right.

(2.) THE respondents before us (Bay's Chamicals) applied for registration of the trade mark Blotex, relating to the same category of goods, namely, sanitary napkins and belts, and the appellant firm instituted a notice of opposition during the attempted registration of this mark. The objections were overruled by the Assistant Registrar of Trade Marks, who accepted the word Blotex and placed in the Register, as the trade mark relating to the goods traded in by the respondent firm. The dispute came up before Venkatadri, J., in C.M.A. No. 317 of 1961, and after a reference to several of the leading decisions, the learned Judge held that the respondents were entitled to maintain the entry in the register, and that the appellants had no cause of action. The appeal was dismissed, and the present Letters Patent Appeal is instituted from the judgment of the learned Judge.

(3.) THE grounds are restricted in scope, and there are only two arguments that appear to require notice at our hands. The first is that under Section 9 (1) (c) of the Act (XLIII of 1958), the word Blotex is not an invented word, according to the appellant's contention. One line of reasoning here is that this word is really a combination of two distinct words, namely Blot and Ex. The authorities are clear, that a word which is a bare or undisguised compound of two other words, cannot by any means be termed as " invented word " within the meaning of the Trade Marks Act. The other argument is that, even apart from this aspect of the case, the word Blotex has some reference to the character or quality of the marketed goods, and that, on that ground also, it cannot be termed an invented word. On the contrary, it is a Word falling within the prohibition of a reference to the character or quality of the goods, to which the mark purports to be assigned.