S. Jagadeesan, Chairman - (1.) THE appeal has been directed against the order of the Deputy Registrar of Trade Marks, New Delhi dated 14.6.95. Respondent herein M/s Vets Farma (Private) Limited filed Application No. 495270 on 1.8.88 to register the trade mark 'LEVASOL' in respect of 'veterinary-medicines' included in class 5 of the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as the Act). THE said application was advertised in the Trade Marks Journal No. 1066 dated 1.11.93 at page 785.
(2.) Ranbaxy Laboratories Limited, appellant herein filed their opposition No. DEL 8400 on 25.1.94 opposing the registration of the respondent's mark on the ground that they are the registered proprietors of the trade mark 'LEMASOL' under Application No. 409129B in class 5 in respect of pharmaceutical preparations for human use and the mark applied for is deceptively similar to that of the respondent and therefore the impugned mark is not registrable under Sections 9, 11(a), 11(e), 12(1) and 18(1) of the Act. The respondent filed the counter-statement on the material averments contained in the notice of opposition and contended that they are the proprietors of the mark applied for which is prior in adoption and user to that of the opponents in respect of veterinary medicines and that the impugned mark is not deceptively similar to that of the appellant. Both the parties filed their evidence and after the completion of the procedure formalities the Deputy Registrar of Trade. Marks heard the matter. Finally under the impugned order the Deputy Registrar disallowed the opposition filed by the appellant and directed the application of the respondent to proceed for registration. Aggrieved by the same, the appellant filed the appeal CM (M) No. 325 of 1995 on the file of High Court of Delhi, which stood transferred to this Board pursuant to Section 100 of the Trade Marks Act, 1999. We heard Shri A.R. Lall, learned counsel for the appellant and Shri M.R. Bhalerao, learned counsel for the first respondent. The contention of the learned counsel for the appellant is that the Deputy Registrar had disposed the matter in a two paragraph order which clearly reveals the non-application of mind by the concerned authority. The Deputy Registrar, being a quasi-judicial authority and his order being appealable, ought to have given reasons for his conclusions. Absence of any reason in the order is sufficient ground for setting aside the same. Even on merits it could be seen that both the marks are identical and similar and as such the respondent's mark is deceptively similar to that of the appellant's mark. Hence, the use of the respondent's mark would definitely create confusion. Further, the distributing window being the same, medicine for veterinary use or human use do not make any difference as there is every possibility of mixing up of the medicines in the pharmaceutical store. Hence, the Board may either remand the matter to the Deputy Registrar for fresh disposal or taking into consideration the lapse of time, can dispose of the appeal on merits.
(3.) FOR contra, learned counsel for the respondent contended that the Deputy Registrar had specifically mentioned that the impugned mark will not cause any confusion especially due to the reason that the respondent's medicine is for veterinary use. As the medicines manufactured by both the parties are meant for different use, there is no possibility of confusion and overruled the objections raised by the appellant under Sections 9, 11(a), 11(e), 12(1) and 18(1) of the said Act. Further it was contended that the respondent being the earlier user, their right is to be safeguarded in terms of Section 33 of the said Act. Hence, the appeal is liable to be dismissed.;