Law: Trade Mark Act, 1940

Section: S. 10

  Trade Marks Act (V of 1940), S. 10-Duty of Registrar to see whether applicant's Mark is deceptive or misleading for the trade or public.   Trade Marks Act (V of 1940), S. 10-Test-Evidence of user entirely irrelevant for purposes of S. 10-Identity or resemblance-Only test.   In a case under section 10 of the Trade Marks Act, 1940 the evidence of user is entirely irrelevant. The only test that has to be applied when the Court is considering a case under section 10 is the test of identity or resemblance. Even if the applicant could establish a long user, if the respondent could establish no user at all, if there was resemblance between the Marks of the applicant and the respondent, and if there was likelihood of deception, and if the respondent was first in the field and had their Trade Mark registered, the applicant's Trade, Mark could not be registered.   Trade Marks Act (V of 1940), S. 10-Court's duty mainly towards public-Registrar's discretion properly exercised-Not to be interfered with.   In considering an application under section 10 of the Trade Marks Act, the main duty of the Court is towards the public and maintenance of purity of the register. When a case is sought to be made out that a particular Trade Mark is likely to deceive and create confusion, the contest is not so much between the parties to the litigation as it is a contest between a party defending his right to a particular Trade Mark and the public, and the decision of the Registrar in such a case must carry considerable weight with any Court or Tribunal which is to review its decision. If the Registrar has exercised his discretion properly, High Court would be loath to interfere with his order. JUDGMENT   AKBAR, J.-This is a Trade Mark appeal, and it came to be filed under the following circumstances : L. R. Khan, the sole proprietor of New Light Chemical Industries filed an application being Application No. 20783 to the Registrar, Trade Marks, Chittagong, on the 13th October 1953, for registration of the Trade Mark consisting of the word "LIVERGIN", Letter `NLCI' and a small device of an Eagle on a carton. These marks are used…