SUNDER PARMANAND LALWANI Vs. CALTEX INDIA LTD

JUDGEMENT

(1.) THIS appeal concerns a dispute over a Trade Mark. The Trade Mark is the word "caltex" per Se.

(2.) ONE Parmanand Teckchand Lalwani, carrying on business under the name and style of Lalwani Brothers, filed an application for registration of the said Trade Mark in respect of Class 14, but confined to "horological and other Chronometric instruments and parts there-of" included in Class 14. In the application, the applicant claimed to be proprietor of the mark on the ground that the mark bad been used since "one and a half year. " On the 11th September 1958, Caltex (India) Limited filed their opposition in the matter of the said application. The Opponents contended that they were proprietors of the said mark in Class 4 and Class 19; that they had used that mark in India in respect of their goods since the year 1937; that they had carried on wide publicity; and that, therefore, the applicant's proposed trade mark being identical with their own was likely to deceive or cause confusion in the trade. The opponents further contended that in any event the registration should be refused in the exercise of the discretion available in law whether the mark should be refused or not. On the 20th November 1958, the applicant filed his counterstatement. In the counterstatment, the applicant contended that there would be no confusion as the class of goods in which the mark would be registered would be different from the class of goods in respect of which the opponents were using the mark. The applicant further stated that the mark "caltex" had since long been registered in Switzerland in the name of M/s. Degoumois and Co. for goods in class 14, and that the applicant had first adopted, introduced and used the mark on his goods in India since 1955.

(3.) AFTER certain affidavits were filed by the parties, the matter of the said opposition reached hearing before the Deputy Registrar on 23rd October 1959. At that hearing, the applicant's counsel raised a preliminary objection to the admissibility of the copies of certain affidavits which had been attached to other affidavits. The objection was upheld. As a consequence thereof, the Deputy Registrar allowed the opponents to file further evidence by way of affidavits in support of the opposition. Such affidavits were in fact filed by the opponents. Those affidavits consist of one affidavits by one Berry, an employee of the opponents and 36 affidavits by 36 other persons. All these 37 affidavits are on the point whether there was a tangible danger of confusion between the two marks. Under the leave given to him, the applicant also filed further affidavits in reply to the points raised by the said 37 affidavits. All these affidavits are of different dates in February 1960. One of them is of the applicant himself, four of his witnesses, and four of other persons.