P L D 1959 (W (PLP)

Held: the two conditions imposed by the Registrar were not sound nor by imposing of them the apprehension of confusion in the mind of the public could be obviated. The first condition was not satisfactory even for removing the apprehen sion which was recognised by the Registrar, because granting that the words "Paras Sabun" would not be written in English as a part of the trade mark, yet there was no restriction of adver tising the article for commercial purposes in English language. The second condition disregarded the claim of the appellants to use the mark "Pears" not only in respect of soap but in respect of perfumery and toilet requisites. It was true that the appellants had not used their mark in respect of laundry soaps, but they had acquired a goodwill and reputation which was their own and which should not be stolen by others for pushing their goods on the market. If the respondents used a confusing mark for selling laundry soap then the appellants did not stand to lose business in the sense that their articles which were not on the market would not be sold, the less for it, but at the same time, if there were any chances of the respondents taking illegitimate advantage of the reputation and goodwill of the appellants, then to that extent, their advantage would amount to trading on the goodwill of the appellants. [Appeal was accepted.] I. Mahmood for Appellant. Muzaffar Hassan for Respondents. Date of hearing : 2nd January 1959. The appellants have been using the mark of perfumery and toilet articles, including soaps apparently been using this mark for the last fifty years throughout India, including the territories which now constitute Pakistan. The respondents have been manufacturing laundry soap for the last 12 or 13 years and have been using a device which consists of the figure of an old man with the words in Urdu and English "PARAS SABUN". They applied for the registration of this devices, and therefore the appellants entered on opposition. The learned Registrar of Trade Marks has held that there is a possibility of visual confusion if the words "PARAS SABUN" are written in Roman script, but according to him, there is no likelihood of any phonetic confusion. His argument is that the word "PEARS" is likely to be mispronounced in Pakistan, but no distortion of the sound of, the word, which is likely to take place in this country, can make it such as to create a confusion with the pronunciation of the word "Paras". It is not easy to appreciate as to how various distortions of the word "PEARS" can be exclusive of a sound which may be confused with the sound of the word "PARAS". Coming to the conclusion, however, that there is a possibility of visual confusion only, the learned Registrar of Trade Marks has registered the device of the respondents subject to the condition precedent that the words "PARAS SABUN" should not be Written in English, and further that the specification should be confined to soaps for laundry purposes only. The first condition does not appear to be satisfactory even for removing the apprehension which was recognised by the learned Registrar of Trade Marks, because granting that the words "PARAS SABUN" would not be written in English as a part of the trade mark, yet there is no restriction on advertising the article for commercial purposes in English language. The second condition disregards the claim of the appellants to the use of the mark "Pears" not only in respect of soap but in respect of perfumery and toilet requisites. It is true that the appellants have not used their mark in respect of laundry soaps, but they have acquired a goodwill and reputation which is their own and should not be stolen by others for pushing their goods on the market. If the respondents use a confusing mark for selling laundry soap then the appellants do not stand to lose business in the sense that their articles which are on the market will not be sold the less for it, but at the same time, if there are any chances of the respondents taking illegitimate advantage of the reputation and goodwill of the appellants, then to that extent, their advantage would amount to trading on the goodwill of the appellants. For the above reasons, I do not think that the two conditions imposed by the learned Registrar of Trade Marks are sound or~ that by imposing them the apprehension of confusion in the mind) of the public would be obviated. It is important to draw a distinction between the confusion which arises in connection with the sale of goods and the confusion which arises on account of the use of a trade mark which is the property of another person. A mark vouches for the goods which bear it. If another person borrows it, the he borrows the reputation of the other too. Unfair competition may exist not only in the sale of goods of the same character but in the unfair appropriation and use of the trade mark of another. There can be innocent use of the trademark of another and even then it is objectionable, but in a case like the present one where the reputation and goodwill of the appellants is wide spread, the chances of the respondent, to be benefited from it lead me to the conclusion that the appropriation of the mark of the appellants by using a mark of confusion sound and look is not as innocent as it may appear. I, therefore, accept the appeal and reverse the order of the learned Registrar of Trade Marks. K.B.A./A. H. Appeal accepted.