Search Results Page

Search Results

1 - 8 of 8 (0.20 seconds)
W.A. Tyzack & Co. Ltd. vs Kanayalal Khandewala And Anr. on 8 October, 1971 cites

James Chadwick & Bros. Ltd. vs The National Sewing Thread Co. Ltd. on 16 March, 1951

(4) Before answering this question, it is desirable to keep in mind the principles which govern such cases. These principles are enunciated by Chagia C.J. in James Chadwich & Bros. Ltd. v. The National Sewing Thread Co.. Ltd. and by Lord Johnston in Price's Patent Candle Company Ltd. v. Ogsion and Tennant Ltd. (26 Reports of Patent, Design and Trade Mark Cases, 797).(2) Chagia C.J. speaking for the court, had explained these tests in the following words :- "LOOKINGat the scheme of these two sections, it seems to be clear that section 10 has undoubtedly a restricted operation. It deals with a case where the trade mark sought to be registered is identical with the trade mark of another proprietor or where there is a close resemblance between those two trade marks. So that under S. 10 what the Registrar has got to do is to compare the trade mark of the person applying for registration with the trade mark already registered by him, and if he finds that there is an identity between the two or there is a close resemblance such as to be likely to deceive or cause confusion, then he must refuse registration. When we turn to S. 8, it is wider in its operation. In the first place, if there is a trade mark which is likely to deceive or cause confusion, it must be refused notwithstanding the fact that there is identity with another trade mark nor is there any close resemblance with another trade mark. The Registrar has to come to a conclusion independently of any comparison with any registered trade mark. Further, whereas S. 10 contemplates an opposition by a proprietor of a registered trade mark, opposition under S. 8 may come even from a person who is selling goods under a trade mark which is not registered. What the Registrar has to decide is merely whether looking to all the circumstances of the case, a particular trade mark is likely to deceive or to cause confusion. In this particular case the Registrar has come to the conclusion that the trade mark in question falls both under Ss. 8 and 10. According to him there is a close resemblance between the trade mark of the appellants & the trade mark of the respondents such as likely to deceive or cause confusion, & also it is his opinion that apart from any resemblance in itself the trade mark sought to be registered is one which is likely to deceive or cause confusion. The principles of law applicable to the facts of this case are well settled. The burden of proving that the trade mark which a person seeks to register is not likely to deceive or cause confusion is upon the applicant. It is for him to satisfy the Registrar that his trade mark does not fall within the prohibition of S. 8 and 10 and therefore it should be registered. The Registrar, in coming to the conclusion whether a trade mark should or should not be registered, exercises the discretion vested in him by statute & the Court in appeal should always be extremely loath to interfere with that discretion. The authorities clearly lay down that discretion should not be interfered with unless the Court comes to the conclusion that the Registrar in coming to the conclusion that he did was clearly wrong or patently in error. Now in deciding whether a particular trade mark is likely to deceive or cause confusion, it is not sufficient merely to compare it with the trade mark which is already registered & whose proprietor is offering opposition to the registration of the former trade mark. What is important is to find out what is the distinguishing or essential feature of the trade mark already registered & what is the main feature or the main idea underlying that trade mark, & if it is found that the trade mark whose registration is sought contains the same distinguishing or essential feature or conveys the same idea, then ordinarily the Registrar would be right if he came to the conclusion that the trade mark should not be registered. The real question is as to how a purchaser, who must be looked upon as an average man of ordinary intelligence, would re-act to a particular trade mark, what association he would form by looking at the trade mark, & in what respect he would connect the trade mark with the goods which he would be purchasing. It is impossible to accept that a man looking at a trade mark would take in every single feature of the trade mark. The question would be, what would he normally retain in his mind after looking at the trade mark? What would be the salient feature of the trade mark which in future would lead him to associate the particular goods with that trade mark?)"
Bombay High Court Cites 19 - Cited by 42 - B P Sinha - Full Document
1