S. Jagadeesan, Chairman - (1.) THE appellant filed this appeal against the order of the Deputy Registrar of Trade Marks, Chennai dated 25.01.02, THE first respondent herein filed application No. 475406 on 17.7.87 for registration of trade mark label containing the device of Wavy lines predominantly in blue background and the word ZERO as its essential feature of the mark in respect of confectionary included in class 30. THE said trade mark is proposed to be used on the date of the application. THE application of the first respondent was advertised as accepted in the Trade Mark Journal No. 1078 (S) dated 8.5.94 at page 55. THE appellant herein filed their opposition No. MAS-3162 on 5.9.94 opposing the application of the first respondent on the following grounds:- (i) THE appellants are the registered proprietors of the trade mark AERO in respect of cocoa, chocolates, confectionery and chocolate biscuits under the trade mark No. 8979. (ii) First respondent's mark ZERO is deceptively similar to the appellant's trade mark AERO and the goods are of same nature. (iii) THE appellant being established user had built up reputation and the use of the disputed trade mark by the first respondent will result in confusion and deception.
(2.) The respondent filed their counter statement on 10.5.95 denying the averments made by the appellants and claimed that the impugned trade mark is distinctive and distinguishable from that of the appellant's mark. The parties have not led in any evidence. The Deputy Registrar of Trade Marks heard the counsel on either side and ultimately rejected the opposition of the appellant herein and allowed the application of the respondent for registration of their trade mark. Aggrieved by the same the first respondent filed an appeal TMA No.2/02 on the file of High Court of Judicature at Madras. The said appeal stood transferred to this Board pursuant to Section 100 of the Trade Marks Act, 1999 and numbered as TA No. 34/2003.
(3.) THE learned counsel for the appellant contended that the impugned mark ZERO is visually and phonetically similar to that of the appellant's trade mark AERO and as such the impugned trade mark cannot be registered as per Sections 9, 11 (a) and 12(1) of the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as the Act). Moreover, the goods of both the appellant and the first respondent being of the same nature, it will create confusion in the trade. THE Deputy Registrar had considered the minute differences between the two trade marks and came to the conclusion that both are not identical. THE Deputy Registrar while comparing the two trade marks had overlooked the principles laid down by the various High Courts as well as the Supreme Court that both the trade marks should be looked at in a lay man's point of view and there cannot be any microscopic comparison of the two to find out the slight differences to come to the conclusion that both are dissimilar.;