Law: Trade Mark Act, 1940

Section:

(a) Trade Marks Act (V of 1940), S. 46(4)-Notice in "prescribed manner"-"Manner" does not necessarily mean `form". The King v. Lincolnshire Appeal Tribunal (1917) 1 K B 1 ref.   (b) Trade Marks Act (V of 1940), Ss. 46(4) & 23-Suo motu notice under S. 46(4) by Registrar who himself had registered Trade Mark-Burden on Registrar to prove that Trade Mark was not validly registered-Phonetic similarity not noticed by Registrar at time of registering Trade Mark-Holding of phonetic similarity subsequently to be transparent by Registrar, held, not adequate rebuttal of presumption under S. 23.   Nims : "Unfair Competition and Trade-Marks", 2nd Vol., pp. 1048, 1047 & 1018 ref.   (c) Trade Mark-Test of deception for purpose of Trade Marks Act (V of 1940)-Not what thoughtful persons would take it to be but how mind of common consumer is affected by impugned Mark-Trade Marks Act (V of 1940)  JUDGMENT   This is an appeal under section 76 of the Trade Marks Act, 1940, against the order of the Deputy Registrar of Trade Marks, dated the 26th of February 1962, by which he removed the mark "BENAVELL" which was registered under No. 23423.   The facts which form the background are that the appellant made an application forthe registration of the above mentioned trade mark on the 7th of March 1955. It was examined by the same officer who has removed it on the 26th of February 1962. The trade mark was advertised in the Trade Marks Journal under section 15 of the Trade Marks Act, 1940, and there was no opposition to it. A certificate of registration was, therefore, issued on. the 15th of November 1958, and the date of registration was declared in the certificate, in terms of section 16 of the said Act, to be the 7th of March 1955. On the 5th of May 1961, the Registrar of Trade Marks caused a notice to be issued under section 46(4) of the said Act calling upon the appellant to show cause as to why the entry in the Register of the mark "BENAVELL" should not be removed and pointing out that the word "BENAVELL" was phonetically similar to the word "BENAULA", which means cotton…