SAGAR BEEDI WORDS Vs. BHARATH BEEDI WORDS

JUDGEMENT

(1.) THIS is an appeal preferred under sub-section (2) of Section 109 of the Trade and Merchandise Marks Act, 1958, to challenge the correctness of the order dated April 19, 1976 passed by the Deputy Registrar of Trade Marks rejecting the application of the appellants for registration of a mark.

(2.) THE facts which have given rise to the filing of the present appeal are as follows: On February 6, 1973, the appellants trading as Sugar Beedi Works and also as T. Chinayya & Co. filed an application No. 285814 to register in Part A of the register a trade mark consisting of a label containing the numeral '35' and the bust portrait of a man in respect of a specification of goods which after amendment reads as "Beedies for sale in the States of Gujarat and Maharashtra" in Class 34. THE Registrar directed the appellants to delete the numeral '35' at the top of the label and at the bottom of the label with the words ' Registered' before advertisement of the mark. THE appellants having complied with the demand of the Registrar, the mark was advertised in the Trade Marks Journal on May 16, 1974.

(3.) MR. Chagla, the learned counsel appearing in support of the appeal, submitted that the order of the Deputy Registrar suffers from a serious infirmity as it has been over looked that the mark of the appellants had two essential features, the numerical figure and the bust portrait. The learned counsel submitted that the Registrar ought to have regard to these two essential features of the appellants' mark and should have recorded a finding that the two marks are dissimilar. It was urged that the Registrar was more impressed by the general impression of the mark and has ignored its essential features. The learned counsel submitted that this error on the part of the Registrar has resulted into a finding against the appellants under Section 11 (1) and Section 12(1) of the Act. MR. Tulzapurkar, appearing on behalf of the respondents on the other hand submitted that the numeral '35' and the bust portrait are not the essential features of the mark, but placement of the words, the style of the portrait, the shield which flankes the portrait, the colour of the scheme and the general characteristics are the essential features and it is necessary to determine by looking to the entire mark whether it is similar to the mark of the respondents. Section 11(a) provides that the mark, the use of which would be likely to deceive or cause confusion shall not be registered as a Trade Mark. Section 12(1) of the Act provides that no trade mark shall be registered in respect of any goods or description of goods which is identical with or deceptively similar to a Trade Mark which is already registered. The scope and the ambit of the two sections is undoubtedly different, but it would be convenient to dispose of the question whether the prohibition of the either sections if attracted together.