Law: Trade Mark Act, 1940

Section: 10(1)

Law: Civil Procedure Code (V of 1908)

Section: O. X1X

  (a) Trade Marks Act (V of 1940), S. 10(1)-Trade mark (in respect of soap) comprising of device of Ace of Spade with word "Kalapan"--Trade mark, in respect of same class of goods, having device of Heart with words "Lai Pan" already registered--- Held, great resemblance between two marks-Registration under S. 10(1) rightly refused. An application for registration of trade mark in respect of all types of soaps was filed. The trade mark sought to be registered comprised a label containing the device of the Ace of Spade with the word "Kalapan". At the time when the application was made, it was found that there was a registered trade mark having the device of a Heart with the words "Lal Pan" in respect of the same class of goods. The Registrar, in circumstance, refused the application on the ground that there was tangible danger of the mark sought to be registered being mistaken, by the illiterate persons, for the already registered mark of another manufacturer. Held : The Registrar was justified in refusing registration. It is well-settled law that the test of comparison was not to take the two marks and put them side by side for comparison, because that was not what a man did when he went to buy a thing. The answer to the question whether the sound of one word resembles too nearly the sound of another so as to bring the former within the limits of section 10 of the Trade Marks Act must nearly always depend on first impression, for obviously a person who is familiar with both words will neither be deceived nor confused. It is the person who only knows the one word and has perhaps an imperfect recollection of it who is likely to be deceived or confused. Little assistance, therefore, is to be obtained from a meticulous comparison of the two words, letter by letter and syllable by syllable, pronounced with the clarity to be expected from a teacher for elocution. The Court must be careful to make allowance for imperfect recollection and effect of careless pronunciation and speech on the part not only of the person seeking to buy under the trade description, but also of the shop assistant ministering to that person's…