1993 PLP 2196 (CLC)

Date of hearing: 7th April, 1991: This appeal under section 76 of the Trade Marks Act, 1940, has been filed by appellants Messrs Diamond Food Industries Limited against the decision dated 11‑4‑1990 passed by the Assistant Registrar of Trade Marks refusing to register trade mark applied for by them

2. The appellants, who are the manufacturers of bakery and confectionery products, applied for the registration of a Trade Mark "DIETER" for their products. Their application was registered as Application No. 98081 in Class XXX. The Assistant Registrar of Trade Marks raised an objection to its registration under section 6(1)(d) of the Trade Marks, 1940, and issued a show‑cause notice to the appellants. After hearing the appellants he refused to register the mark mainly on the ground that the mark applied for in fact describes the character and quality of goods which can only enable the consumers to form an opinion about the goods itself.

3. Mrs. Navin Merchant, Advocate appearing for the appellants mainly contended that the word "DIETER" is a distinct word and according to its ordinary dictionary meaning has reference to a person who follows a particular diet. She has referred to its meaning given in Webster's Third New International Dictionary of the English Language, Unabridged which is as follows:‑‑ "A person who supervises and prescribes a diet or dietary; 2. that diets: a person that consumes a reduced allowance of food in order to lose weight." According to her use of such a word as a trade mark does not have any reference to the products of the appellants. In support of her such contention she has referred to the case reported in 1984 CLC 3249 Seven‑Up Company v. Registrar of Trade Marks, Karachi. In that reported case word "Hapi" was applied for registration in Class XXXH for the beverages, etc., manufactured by the appellants and it was refused on similar grounds. It was then held that the use of the word "Hapi" of the trade mark would have reference to the condition of the consumers of the beverages and would not refer to the products of the appellants in that case. Accordingly registration of such mark did not fall within the mischief of clause (d) of section 6(1) of the Trade Marks Act

4. In the present case the word "DIETER" according to its ordinary dictionary meaning can only have reference to the consumer of the products of the appellants, and it has no reference to the products manufactured by them. Under such circumstances I am inclined to hold that registration of such mark will not offend the provisions of section 6(1)(d) of the Trade Marks Act, 1940. For such reason the decision impugned in this appeal is set aside and the appeal is allowed with a direction to the respondent to take further steps for the registration of the trade mark applied for by the appellants in accordance with the provisions contained in Trade Marks Act, 1940 and the rules framed there under. H.B.T./D‑113/K Appeal allowed.