Padma Khastgir, J. - (1.) The appellant is a Limited Company incorporated under the Indian Companies Act, having its Registered Office at Ludhiana in the State of Punjab. The case of the appellant is that it is a very popular and well-known manufacturer of cycles and cycle - parts and the sales of the said Company exceed a crore of rupees per annum. At present the petitioners are the Registered Proprietors of the Trade Mark bearing Registration no. 190649 and the appellant has been using the Trade Mark "Avon" on cycles and cycle parts since 1962. According to the appellant, the said Trade Mark had become very famous all over India. The Respondent no. 3 J.S. Aurora carrying on business under the name and style of "Overseas Cycle Company" at no. 3, Bentinck Street, Calcutta at first applied for registration of a Trade Mark "Avon" under application no. 187072 for cycle - parts only. But as the Registrar refused to register the said Trade Mark the said application was withdrawn by the Respondent no. 3. Thereafter in June, 1961, the Respondent no. 3 applied for the registration as a Trade Mark in respect of cycles and cycle - parts included in Class 12 but not including tyres of the word "Awin". On some objection being raised for registration, the Respondent changed it to "Awin". The Deputy Registrar, Respondent no. 1 ordered the Mark to be advertised. Accordingly it was advertised on the Trade Marks Journal no. 318 dated 1st of September, 1962 at page 837. The said advertisement stated that the "mark" was proposed to be used. The appellant filed an opposition to the above application bearing no. 202874 on 30th of November, 1962. In the said opposition the appellant took the points that the said Mark was not registrable under Section 11 (a), 11(e) and 12(1) of the Act. The appellant in their opposition mainly took the point that I they have been using their marks for the last 10 years and Mark "Avon" was a part of their name and trade style and that Mark was registered. There was only a difference of a vowel in respect of the appellant's registered Trade Mark "Avon" and the Respondent no. 3 are going to use the said Mark "Awin" on the same type of goods except tyres. In support of the appellant's opposition various numbers of Affidavits were filed and these Affidavits show not only the long use of the 'Avon' cycles in the market but also enormous sales achieved by the petitioners through various dealers and agencies. Those Affidavits showed not only the volume of sales but also the evidence of user of the word "Avon" as a Trade Mark. r The main contention of the Respondent no. 3 was that he had been marketing his product under several Trade Marks and the word "Avon" does not resemble phonetically or visually the Mark "Awin". The Respondent no. 3 also relied on various affidavits in support of his contention. On 2nd of April, 1966 the said application was heard and an order was passed by the Deputy Registrar of Trade Mark on the 18th of April, 1968 which was received by the appellant on 20th of April, 1968. In the said order the Deputy Registrars of Trade Mark although accepted that the fact that long user of the Mark has been established by the appellant but did not accept the various sales figures given by the appellant as the appellant could not produce their Account Book or any certificate by a Chartered Accountant. The Deputy Registrar came to conclusion that both the Marks "Avon" and "Awin" were totally different. According to him the word "Avon" is not the distinguishing feature of the registered Trade Markno. 190649 or that there is any deceptive similarity between the word "Avon" and "Awin". According to him the tendency to slur the letter "A" is common and so "Avon" and "win" are not deceptively similar and he came to the conclusion that the objections under 11(a), 11(e) and 12(1) could not be invoked and the opposition filed by the appellants failed on every count. Being aggrieved by the said orders, the appellants appealed from the said orders mainly on the grounds that as the Respondent no. 3 are not the manufacturers as such they could easily use any other label for their goods whereas the petitioners are manufacturers and the Trade Mark is put on the goods by a mechanical process which is embossed with the dies. In fact at one stage the Respondent no. 3 was willing to change their work Mark "Awin" to the word "Awine". According to the Appellant, the cycle is a very common means of transport mostly for the poor people who are not generally literate in English. So when the words "Avon" and "Awin" are written in vernacular languages they would look and sound similar and if they are written in Urdu they will be written identically. Mr. Debi De, Barrister - at - law appearing with D. P. Mukherjee submitted before me that the Deputy Registrar of Trade Marks should have held that the words "Avon" and "Awin" are similar not only visually but also phonetically. It is the definite case of Mr. De, that the Respondent no. 3 has been frantically trying to copy the mark of the petitioners with a dishonest motive taking advantage of the goodwill and reputation of the petitioners and its sale performance, the Respondent no. 3 is going to use the Mark by passing off his goods as that of the petitioners. According to Mr. De, the intention of the Respondent no. 3 has been continuously - malafide and the adoption of, the mark "Awin" has been deliberately and dishonestly done. Moreover, Mr. De, submitted that the Deputy Registrar was wrong by depending on English decisions and depending on the English way of pronunciations. On the contrary he should have taken the Indian conditions into consideration more so because the petitioners' sales of cycles and cycle - parts are maximum in the State of Punjab where the people of Punjab in the vernacular language would pronounce the word "Avon" and "Awin" in exactly similar manner. According to him the Respondent No. 3's mark is not in use but is oily proposed to be used so what prevented them to adopt any other mark which is dis - similar to the mark of the petitioners. As they are not manufacturing but only as merchants would be putting their liable on the goods produced by others, as such adopting a new lable would not have hit the appellant or any body else. Mr. De's definite case is that the use of word in vernacular languages in India would give the same effect phonetically and visually. According to the appellants the Deputy Registrar should have held that Section 11(a) of the Trade and Merchandise Marks Act is a complete bar to the registration of the Trade Mark "Awin" and also should have refused the registration of the Trade Mark under Section 12(1) on account of deceptive similarity of the mark.
(2.) Mr. De, has submitted that the only test to be applied in this case is whether it would cause any deception or confusion or not. According to him, the onus is on the Respondent to show affirmatively that the mark is not materially going to cause the confusion or deception and to discharge that onus the Respondent must prove that there is no probability of deception or confusion. Mr. De has submitted that the Assistant Registrar's decision is guilty of serious infirmities as he has overlooked to take into notice that the onus lay on the Respondent to prove that there is no probability and chance of deception. From his finding it would appear that he has come to the finding that the proposed registration would not cause any deception. When all affidavits showed that there might be a confusion of the word of the mark "Awin" with "Avon", the Assistant Deputy Registrar should have taken into consideration the Affidavit evidence on that fact. Visually the first letter of both the marks "A" do not look very different, phonetically, according to Mr. De they are similar as the word "Avon", may be confused with the word "Awin". Mr. De referred to various cases and submitted that this appeal should be allowed by setting aside the order of the Deputy Registrar of Trade Mark.
(3.) Mr. B. C. Dutta, advocate, appearing on behalf of the Respondent no. 3 has submitted that the entire Trade Maik should be looked into as a whole. The petitioners' registered Trade Mark is "Avon Cycle Private Ltd." The entire picture of the said Trade Mark should be taken into account which would appear from page 25 of the paper book. There is a big capital letter 'A' on the top of which it is written "Avon" and on the bottom of the letter capital 'A' it is written "Cycles Private Ltd". There is a pictorial design which resembles two wings. The word "Avon" has also been peculiarly written with a capital "A" with a mark of two wings on the top of it and the part of the letter "A" covers the whole of the word "Avon" whereas in his client's mark "Awin", there is no picture accompanied with it, no name of Company has been mentioned no wings and no other parafarnalia, as such ignorant or uneducated people in India would be able to distinguish "Avon" from "Awin" by simply looking at the picture and the word alone. Phonetically, also both the words are different and do not sound or pronounced absolutely on clinching. The case of the Respondent no. 3 is that his is a Trade Mark of words only whereas the appellant's mark is a picture mark with the words and not simple words alone. Moreover, from the registration of the Trade Mark, it would appear that the petitioners' nos. is 190649 whereas the Respondent no. 3's Registration No. is 202874. As such there is hardly any difference between the application of the two regarding the registration of their Trade Marks. One cannot take a part of the Trade Mark and say that others are trying to copy it while taking into consideration, the entire registered Trade Mark must be taken into consideration. The Trade Mark "Avon" is a composite mark with not only the letters but with designs and picture whereas the mark "Awin" is only a combination of letters. If the petitioners would have registered a part of their Trade Mark that is the word "Avon" alone then there could have been such a objection for registration of the word "Awin". Here in this case, there is hardly any possibility of confusion, the word "Avon" is not the distinguishing feature in the case of the registered Trade Mark of the appellants, but the design is also there. The Registrars of Trade Mark who are experienced persons dealing with such facts and matters day to day, as such their findings should not be disturbed by the Court or interfered with ordinarily unless the Court finds that there has been a gross error on the part of the Registrar in coming to the said conclusion. In this case the Respondent No. 3 has discharged his onus'. So far as the Affidavits are concerned, they are only opinion evidence and it is entirely a matter for the Deputy Registrar to decide and it is not for the people who are the registered dealers and agents of the petitioners to say regarding the same. Only in cases where a report is manifestly wrong the Court should interfere. When there is no question of visual similarity much sting goes out of the dispute. In case of phonetic similarity it must he very strong to deceive or confuse a buyer.';