N. H. BHATT - (1.) THE above authorities therefore show that essential it is a question of fact whether the allegedly offending mark is such as would cause confusion or deception or not and the court has to call its legal and general acumen to bear on the question after circumspecting all the relevant facts of the case.
(2.) AS said above the defendant has chosen not to lead any evidence in this case. The plaintiffs partner Mohanlal Ex. 48 has shown that since 1959 they had started manufacturing diesel engines and spare parts with the trade mark Master which had come to be registered in the year 1962 He also showed that the sales of their machines were worth 12 to 15 lac per year and that they had expended considerably after advertising and marketing their goods. Then he made the following further clear statements which I would like to quote verbatim from paragraph 2 of his deposition. Our engines are useful for agricultural purposes of drawing water from the well. Our purchasers are agriculturists from villages. They are usually illiterate. They ask for our engines by the trade name master....... Then he stated as follows in para 4 of his deposition: Like the defendant other manufacturers also started engines using the name Master along with some other word like Road Master Kishan Master and others. I had also filed suits against them in this court being civil suits Nos. 4 5 7 8 11 12 14 and 16 of 1969. Except the present case all the cases are decided either by compromise or by judgment. All of them have stopped using the word Master Due to the use of the word Master by the defendant and others our sales went down by 50% Then in paragraph 6 he stated as follows: Field Master Trade mark is used by one manufacturer. it is Registered. We have started proceedings to get that trade mark cancelled before the Trade Mark Registry at Bombay. They are pending. The defendant sells his engines throughout Saurashtra including Rajkot. The plaintiffs two other witnesses Girdharlal and Omprakash also support the say of Mohanlal. Girdharlal who is a dealer from very Saurashtra region also stated as follows: The machines were purchased from us by agriculturists. They were usually illiterate. Those who wanted to purchase the machines of the plaintiff they merely asked for Master machines. I had the dealership for these engines for Gondal Area. All the engines including the Master engines are similar in shape having been manufactured on the type design of Lister Machine.....If the agriculturist is given any other machine in place of Master they would not be able to distinguish (The sentence is underlined by me.) Apart from the evidence of Mohanlal and this above-mentioned witness Girdharlal the fact of illiteracy of agriculturists can well be judicially noticed also. Erstwhile region of Saurashtra consisted of several petty States and it is a matter of common knowledge that standard of literacy in that region was comparatively far low. It is in this context and also in the context of the say of Girdharlal that all diesel oil engines are other- wise identical in appearance that we have to look to the probability of passing-off other engines including the defendants engines as the engines manufactured by the plaintiff. The question that is capital before us is whether the mark Master and Reec Master are phonetically similar or not. AS said above visual resemblance is almost unchallenged. Girdharlal has stated so and that statement is not controverted. AS in the case of Rustom and Hornby Ltd. v. Zamindara Eng Co. A.I.R. 1970 S.C. 1649 the suffix of the word India to the word Ruston did not make any appre- ciable difference to the eyes of an unwary customer. It was also a case of Diesel engines purchased by agriculturists and others. In our case we have got a categorical evidence that the engines manufactured by the plaintiff and the defendant are useful to the agriculturists who are proved to be illiterate. A villager who goes to purchase an engine popularly known as Master can very well be given an engine Reec Master and he would be althroughout under the impression that what he has purcha- sed is the 'Master engine which has earned a good name in the market. The only distinguishing feature between the plaintiffs mark and the defendants mark is Reec which is prefixed to the main word Master. By itself it would not make any appreciable difference to the main word Master to the eyes and ears of an unwary customer. Except to a very discerning eye and to discerning ears there would be absolutely no difference between the two. Appeal allowed.;