SATYA DEO GUPTA Vs. AMRIT DHARA PHARMACY

JUDGEMENT

(1.) These are two connected appeals under Section 76 of the Indian Trade Marks Act. Appeal No. 62 of 1954 has been filed by Shri Satya Deo Cupta, Proprietor of Roop Bilas Co., while the other appeal No. 69 of 1954 has been filed by the Amritdhara Pharmacy against Shri Satya Deo Gupta. The relevant facts, which have given rise to these appeals, may be shortly stated : On the 19th of July, 1950, Shri Satya Deo Gupta filed an application for registration of a trade mark in respect of a biochemical medicine in class 5 for registering his trade mark as "Lakshman Dhara." This application was advertised in the trade marks journal and an opposition was put in by the Amritdhara Pharmacy. The case of the opposition was that in the year 1901 Pt. Thakur Datt Sharma started preparation and sale of an ayurvcdic medicine and called it by the name of Amritki-Dhara. Later on in 1903, he altered this-mark and started the use of the name of "Amritdhara" and from that date onwards, that name has been constantly used as a trade mark for that medicine. According to the evidence sales of this "Amritdhara" continued to rise till in 1911 they were over a lac of rupees a year. In 1947, the business was shifted from Lahore to Dehra Dun and since that year the opponents have taken steps against many people who were using the name of either "Amrit" or "Dhara", or both in different combinations in respect of similar medicines. None of these cases, however, was decided by the High Court, except one which has been the subject of a recent decision by a learned single Judge of this Court in Ram Rakhpal v. Amrit Dhara Pharmacy, AIR 1957 All 683 (A). That was a case in which one Ram Rakhpal applied for expunction of the trade mark "Amritdhara", and his case was that he had been using the trade mark "Amrit Sukh Jiwan Dhara",

(2.) The sole question for decision before the Registrar in the present case was whether this new trade mark "Lakshman Dhara" was one which ought to be registered, or not, which depended upon whether the new trade mark could be held to be identicial with the trade mark belonging to the Amritdhara Pharmacy, which had already been registered, or it so nearly resembled it as to be-likely to deceive or cause confusion.

(3.) The Registrar after noting the fact that since 1947 the Amritdhara Pharmacy had taken action against several people, who were using either the word "Amrit" or the word "Dhara" and had succeeded in many cases, he thought that the opposition should be allowed. The Registrar did not deal with the two words proposed to be registered as trade mark independently and did not express his own opinion whether the word "Laksh-man Dhara" was, in any way, identical and was likely to be confused and to cause deception with the word, which had already been registered, namely, "Amritdhara". The Registrar then went on to note that the word "Lakshman Dhara" had been used by the applicant since 1923 but since the applicant must have known and did know that there was in the market a medicine named "Amritdhara" the use was not bona fide and, therefore, cannot be called "honest concurrent user". The Registrar then went on to observe that the advertisement of the two medicines "Amritdhara" and "Lakshman Dhara" were going on in the same newspapers, periodicals and books simultaneously for a considerable time and he, therefore came to the conclusion that this was sufficient to prevent the opponents from successfully opposing the present application for registration as the case was covered by the phrase "other special circumstance" used in Sub-section (2) of Section 10 of the said Act. He, therefore, ordered registration of the trade mark "Lakshman Dhara" subject to condition that it could be used only in the State of Uttar Pradesh, as he found that the medicine "Lakshman Dhara" had admittedly been sold mostly in this State. As a result, therefore, the registration of the, trade mark "Lakshman Dhara" was ordered subject to the condition mentioned above. Aggrieved by this decision, the applicant has come up in appeal to this Court praying that the registration ought to be ordered without any conditions and the opposition has appealed praying that the registration ought to be refused. The whole matter is, therefore, again open for decision.