R.P. Bhatt, J. - (1.) The point of law which arises in this petition filed by Geoffrey Manners and Co. Ltd., by way of an appeal from the Order dated 13th July, 1973 of the Joint Registrar of Trade Marks, allowing registration of the trade mark "MEGAVITE" with a limitation, relates to the interpretation of Section 33 of the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as the "said Act").
(2.) The short facts necessary for the decision are that on 25th May, 1970, the respondents which is a partnership firm carrying on business at Swastik Chambers, Carnac Road, Bombay, who are manufacturers of pharmaceutical preparations made an application, being No. 264591, in the Trade Mark Registry in respect of registration in Part A of the Register of the word mark "MEGAVITE" in respect of a medicinal and pharmaceutical preparation. The specific goods in respect of which the trade mark "MEGAVITE" was applied for registration are a vitamin preparation in syrup form. An objection was taken by the Trade Marks Registry to this application on the ground that the mark "MEGAVITE" was deceptively similar to the registered Trade Mark "MEGAVIT" of the petitioners. It appears that the petitioners had on 29th November, 1962, applied for registration of the trade mark "MEGAVIT" under No. 212522 in respect of medicinal and pharmaceutical preparation including vitamins falling in Class 5 of the Fourth Schedule. At the time when the mark was applied for, it was in respect of a proposed user, the user of the goods having been effected for the first time in August, 1964. Subsequently, after evidence of prior user was shown, the respondents' mark was accepted and advertisement published in the Trade Marks Journal. The petitioners thereafter filed a Notice of Opposition on 20th April, 1972 to oppose the registration of the Mark "MEGAVITE" of the respondents. At the hearing of the opposition, on evidence, it was found that the respondents had used the mark "MEGAVITE" since October, 1962, and the goods were manufactured from about that time. Advertisements, orders, etc., were placed for these goods with the trade mark "MEGAVITE" of the respondents and it was the case of the respondents that the user of the Trade mark "MEGAVITE" and of the goods manufactured by the respondents is anterior in point of time to that of the application of the petitioner for registration of their trade mark "MEGAVIT". In this view of the matter, the respondents relied upon the provision of Section 33 of the said Act and claimed that they were entitled to registration of their trade mark "MEGAVITE" notwithstanding the registration of the petitioners' trade mark "MEGAVIT". The Joint Registrar after hearing the parties came to the conclusion that the respondents were entitled to the registration of the trade mark "MEGAVITE" in view of the provisions of Section 33 of the said Act, and he permitted such registration with certain limitations. In the grounds given by the Joint Registrar for his decision that the trade mark of the respondents should be registered, he observed that the operation of Section 33 should not be limited only to an objection under Section 12(1) of the said Act, but also normally be extended to an objection under Section 11(a) of the said Act based on similarity of marks. The facts in the case are not much in dispute and I believe that this appeal would not have been filed by the petitioners but for the fact that this case involves an interpretation of Section 33 of the said Act and the scope thereof. On facts, admittedly the respondent's user of their trade mark "MEGAVITE" is anterior in point of time to that of the petitioners and in the normal course of events the respondents' trade mark would have been accepted for registration but for the fact that the petitioners had obtained registration of their trade mark "MEGAVIT" prior to the application being made by the respondents.
(3.) Mr. Mehta who appears on behalf of the petitioners has placed two submissions before me. Firstly, he contends that the true scope of Section 33 is only to limit the operation of that section to an objection under Section 12(1) of the said Act and no more. He next contended that in the present case the Joint Registrar has not exercised his discretion as he ought to have under Section 12(3) of the said Act but has decided in favour of the respondents, as he erroneously held that under Section 33 of the said Act, he has to ignore the provisions of Section 12(l) and Section 11(a) of the said Act.;