P.B.Mukharji, J. - (1.) This is a Trade Mark Appeal under Section 109 of the Trade and Merchandise Marks Act, 1958. The appellant is Mac Laboratories Private Ltd., a company with limited liability and incorporated under the Indian Companies Act and having its office at Great Social Building 60, Sir Pherozeshah Mehta, Road, Bombay. The respondents are the American Home Products Corporation, a corporation incorporated in the United States of America having its office at 22, East 40th Street New York, United States of America and the Registrar of Trade Marks having his office in Calcutta.
(2.) The appeal arises out of the appellant's application made to the Registrar for removal of the trade mark 'Dristan' registered under No, 186511 in Class 5 from the register of trade marks. This mark 'Dristan' belongs to the American Company mentioned above. The application of the appellant before the Registrar was made under Section 56 of the Trade and Merchandise Marks Act, 1958.
(3.) The grounds on which the appellant made this application for removal of the trade mark 'Dristan' may be brieily stated. In the first place, the appellant's contention is that the trade mark 'Dristan' was registered without any bona fide intention on the part of the American Company for registration that it should be used in relation to their medicinal preparations for symptomatic treatment of respiratory ailments and that there has in fact been no bona fide use in India of the trade murk 'Dristan' in relation to the said goods by the American company up to a date one month before the date of the application of the appellants. The appellant's application for removal of the trade mark 'Dristun' was dated the 10th April 1961 and filed before the Registrar on the 13th April 1961. The other grounds are that the trade mark 'Dristan' was registered in contravention of Section 11 of the 1958 Act which corresponded to Section 8 of the Trade Marks Act 1940. Thirdly, it is also said that 'Dristan "was not a distinctive mark" and could not be registered and it offends against the provisions of Section 11 of the Trade Marks Act, 1938. It has also been alleged as a ground for removal of the trade mark 'Dristan' that it is deceptively and confusingly similar to another trade mark 'Bistar' registered under No. 122391 in Class 5 in the name of Messrs, Prof, Gajjar's Standard Chemical Works Ltd., Bombay, and such trade mark 'Bistan' had been and was being used by its proprietors for several years past and in fact since the 4th June 1946. Finally, it is also a ground of the appellant that the trade mark 'Dristan' is deceptively similar to the trade mark "Tristine" which the appellant alleged to have been using since October, 1960 in respect of their medicinal preparations.;