CHANAN RAM BEHARI LAL GIDDARBAHA Vs. REGISTRAR OF TRADE MARKS BOMBAY AND LACHHMAN DASS BEHARI LAL GIDDIARBAHA

JUDGEMENT

(1.) THE parties to this appeal are two firms both engaged, in the business of manufacturing and selling snuff and both have their business premises, in Giddarbaha which is a small town in the Ferozpore District. THE appellants firm is called Chanan Ram Behari Lal and the respondent-firm Lachhman Das Behari Lal, the two Behari Lals, being however two different persons. In June 1949 the appellant-firm made two applications to the Registrar of Trade Marks for the registration of two trade marks. One of these contained in it a railway train with the words 'Tufan mail' and the second similary contained the device of a railway train with the words 'Tufan mail snuff'. THE Registrar found that a very similar trade mark had already been registered in the name of K.S. Saheb snuff factory of Madras and he therefore, pointed out that the two trade marks sought to be registered by the appellant-firm were confusingly similar to the trade mark already registered at No. 13183. On this objection being raised, the appellant-firm agreed to delete the device of the train from their marks and had the amended trade marks registered and these were allotted two separate numbers. This registration took effect from the 16th June, 1949.

(2.) ON the 4th January, 1950, the respondent-firm Lachhman Dass Behari Lal applied for the registration of a trade mark consisting of four penals one of which had the device of a railway train with the words 'Royal Frontier Mail' while two penals contained the words Royal Frontier mail snuff'. In that application the respondent- firm stated that they had been using the mark in connection with their snuff ever since the 15th July, 1936. The Registrar of Trade Marks, although aware of the previous registration of a somewhat similar trade mark in the name of K.S. Saheb Snuff Factory, felt that the respondent's trade mark could also be registered, as it was an old trade mark which had been honestly and concurrently used by the respondent-firm within the meaning of section 10, sub-section (2) of the Trade Marks Act, 1940. The Register, thereupon, after, of course due publication proceeded to register the respondent's trade mark. This decision was made on the 6th August, 1953 but was to take effect from the 4th January, 1950, being the date of the application.

(3.) RELIANCE is then placed on the circumstances that the account books of the respondent-firm between 1936 and 1947 were withheld in order to avoid revealing that the 'Royal Frontier Mail' brand was not in existence prior to 1947. The explanation offered is that those account books were not preserved after 1952 and were, therefore, not available, and these seem to me nothing surprising in the explanation, for there would have been much point in preserving old account-books for such length of time.