M.R.A. Ansari, J. - (1.) The appellant M/s W.A. Tyzack & Co. Limited is the owner of a registered trade mark consisting of a device of a man riding a horse and the word "horseman" in English written underneath the device. This trade mark is in respect of chaff cutters which are agricultural implements used for the cutting of the chaff. The respondent is the owner of another registered trade mark consisting of the device of a horse with a human head and the words "Jal Darai" in Devanagri script underneath the device. This trade mark is also in respect of chaff cutters and the trade mark was registered on 29.3.6L The trade mark of the appellant was registered in the year 1943, although according to the appellant the chaff cutters with the said trade mark have been used in India continuously since 1906. The appellant tiled an application before the Registrar of Trade Marks under sections 46, 47(4) and 56 of the Trade & Merchandise Marks Act, 1958 (hereinafter referred to as the Act) and under rule 94 of the rules framed under the said Act for the rectification of the trade marks register by the cancellation of the trade mark registered in the name of the respondent and for removal of the said trade mark from the register of trade marks. The cancellation of the respondents trade mark was sought on the ground that it was deceptively similar to the trade mark of the appellant and was likely to cause confusion in the minds of the people who purchased the chaff cutters and also on the ground that the use of the said trade mark by the respondent was dishonest. Notice ot this application was issued to the respondent and the latter fiied a counter-statement denying the allegations made by the appellant It was stated that the respondent's trade mark was distinctive and was not an immitation of the trade mark similar to the appellant's trade mark. The appellant filed a number of affidavits in support of its application. The respondent did not file any affidavits but relied upon the tacts stated in its counter-statement as well as its trade mark On a comparison of the trade marks of the appellant and the respondent and on a consideration of the evidence, the learned Assistant Registrar, Trade Marks, held that the respondent's trade mark was not deceptively similar to that of the appellant's trade mark and was not likely to cause confusion and that, therefore, there was not sufficient cause removing the respondent's trade mark from the register He, therefore, dismissed the application filed by the appellant The appellant has hied the present appeal against the said order of the learned Asstt. Registrar.
(2.) Section 56(1) of the Act under which the appellant filed the application for rectification is in the following terms :- "On application made in the prescribed manner to a High Court or to the Registrar by any person aggrieved, the tribunal may make such order as it may think fit for cancelling or varying the registration of a trade mark on the ground of any contravention, or failure to observe a condition entered on the register in relation there to."
(3.) This section would enable a person to move the Registrar for the cancellation of a trade mark which has already been registered on the ground that the registration itself was in contravention of the conditions which were necessary for a trade mark to be registered. Under section II of the Act, a trade mark- (a) the use of which would be likely to deceive or cause confusion shall not be registered as a trade mark and under section 12(1) of the Act, no trade mark shall he registered in respect of any goods or description of goods which is identical with or deceptively similar to a trade mark which is already registered in the name of a different proprietor in respect of the same goods or description of goods If the respondent's trade mark comes within the mischief of section 11 or section 12 of the Act, it would be open to the appellant to move the Asstt. Registrar for cancellation of the respondent's trade mark. The question, therefore, for consideration is whether the respondent's trade mark was deceptively similar to the appellant's trade mark or whether the use of the respondent's trade mark was likely to deceive or cause confusion. ;