1987 PLP 1935 (CLC)

(i) Glaxo Laboratories Ltd. v. Assistant Registrar, Trade Marks P L D 1977 Kar. 858 In this case the mark "Crystamycin" of the appellant was registered and the other party applied for registration of the mark "Vitamycin". The appellant filed opposition but the opposition was rejected. A learned Single Judge of this Court allowed the appeal inter alia holding that the mark of the respondent if permitted to be registered was likely to cause deception and confusion in trade and among purchasers. (ii) Abdul Wahid v. Abdur Rahim P L D 1973 S C

104. The question in this case was whether the words "Daigon" and "Dragon" could be refused to be registered as trade marks when the word "Saigon" was already on the register of Trade Marks. The Supreme Court observed that the Assistant Registrar was perfectly justified in holding that it is the first syllable mostly which decides the question of conflict and likelihood of deception and confusion. The Supreme Court set aside the order of the High Court restoring the order of the Assistant Registrar allowing registration of the mark "Daigon". It was also observed by the Supreme Court as follows:‑ "It has been repeatedly held by the superior Courts that 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 and the Court in appeal should always be extremely loath to interfere with that discretion. Such 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." (iii) In Re: Bali Trade Mark (1969) P R C

472. It was held by House of Lords in this case that the use of both the words BERLEI and BALI in a competing trade was likely to cause deception and confusion. (iv) APPLICATION BY BROWN SHOE CO. (1958) RPC

406. It was held in this case that the two marks "Naturlizet" and "Naturalizer" were so similar that their use in respect of the same goods would be a cause of confusion. (v) APPLICATION BY SMITH HAYDEN & CO. LTD 63 R.P.C. 97 In this case the Registrar had allowed the registration of the mark "OVAX" in spite of opposition by proprietor of marks, "HOVIS" and "OVI". High Court dismissed the appeal. (VI) APPLICATION BY LEWIS THOMAS EDWARDS 63 R.P.C. 19 This application for registration of the mark "Jardex" in respect of disinfectants was opposed by the proprietors of mark "Jardox" registered in respect of extract of meat. The application was refused on the ground that possibility of serious consequences arising through mistakes or negligence could not be ignored. Learned counsel for the appellant has also referred to the commentary on the Law of Trade and Merchandise Marks by Dr. S.V. Venkateswarn 1944 Edition at p.228.

4. In his decision dated 23‑1‑1985, the Registrar of Trade Marks has observed that the mark applied for registration by the respondent and the mark already on register are two different words and there is no similarity between these two words. He also observed that the prefix of both words is the letter "NO" but this prefix of only a single letter cannot be enough to determine the similarity of these two words and suffixes of both the words are different. The conclusion of the Registrar that the two marks are different does not appear to be wrong. No doubt the prefix of the two marks are the same but phonetically the two marks "NEOBA" and "NUBAIN" do not appear to be similar. The marks are to be judged as a whole and the totality of the impression made on the purchasers of the goods in question is the determining factor. The two marks i.e. "NEOBA" and "NUBAIN" appear to be phonetically dissimilar and in my view, the purchasers of the products of the appellant are not likely to be deceived or confused by the products of the respondent bearing the mark 4 "NUBAIN" so as to consider that the products of the respondent are in fact the products of the appellant. Learned counsel had very emphatically argued that the two marks are similar and if the mark of the respondent is registered, it is likely to cause deception and confusion among the minds of the purchasers of the appellant's goods. As observed earlier, he had referred to several cases in an attempt to show that the marks in question are similar and likely to cause deception and confusion. However, as observed earlier, the view taken by the Registrar that the two marks are different and there is no similarity between the two does not appear to be wrong specially for the reason that phonetically the two marks appear to be dis‑similar excluding the possibility of deception and confusion.

5. Learned counsel for the appellant had also submitted that the Registrar had wrongly observed that the appellant is manufacturing goods of Unani medicines while the respondent is carrying on business in Allopathic medicines and these different medicines are prescribed by different qualified practitioners i.e. Doctors and Hakeems and hence there is no chances of confusion or deception if both the marks are allowed to sail in the market side by side. According to the learned counsel this reasoning of the Registrar is not correct as the mark of the appellant is registered in respect of all the goods in clause

5. It was also submitted that "NEOBA" is an ellopathic medicine of the appellant society. Be that as it may, as I have already held that the conclusion of the Registrar that the two marks are not similar, is not wrong, this appeal is liable to be dismissed. M.A. No. 15/1985 is dismissed with no order as to costs. H.B.T./H‑14/K Appeal dismissed.