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Jugmug Electric & Radio Co. vs Telerad Private Ltd. on 25 October, 1977 cites

Rustom Ali Molla And Ors. vs Bata Shoe Co. Ltd. on 12 September, 1956

(17) The distinction between sections 11(a) and 12(1) of the Act has been succinctly brought out by Vimadalal, J. in M/s. R. T. Engineering and Electronics Company's case Air 1972 Bombay 157 (8), in paragraph 6, in the following words :- "THEdistinction between Sections 11(a) and 12(1) of the Act, therefore, is (1) whereas, under Section 11, Actual user must be taken into account including the mode of user or the fact that the goods are known in the market by a particular name for the purpose of considering the possibility of deception or confusion, under section 12. the court has only to take into account, what may tersely be called, notional fair user on the basis of the similarity of the two marks, though it must no doubt consider not only visual or phonetic similarity, but also the possibility of contextual confusion or confusion or deception as to trade "origin, as well as the other surrounding circumstances such as the nature of the goods and the kind of customers who would be likely to buy those goods, (2) whereas Section 12 comes into play only when the opponent's mark is a registered trade mark, there is no such limitation in regard to the applicability of Section 11; and (3) whereas Section 12 applies only when the mark applied for is identical with or deceptively similar to a registered trade mark, there is no such limitation in regard to the nature of the goods in a case under Section 11. In either case, however, the Court has to consider the position from the point of view of an unwary purchaser who is a man of average intelligence and of an imperfect recollection."
Calcutta High Court Cites 2 - Cited by 12 - Full Document
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