Das Gupta, C.J. - (1.) This appeal is against the order of the Deputy Registrar of Trade Marks refusing an application by the appellant, Bengal Immunity Co. Ltd., for registration or the word "B. I. Phlogiston" in white on a dark background with the name of the appellant, Bengal Immunity Company Ltd., and its address Calcutta below the same as the trade mark for certain medicinal preparation. As originally made the application was for registration only of the word "B. I. Phlogiston". The Registrar pointed out the objection to registration of this word "B. I. Phlogiston" as the word "B. I." prefixed to "Phlogiston" would indicate the presence of double the chemical element "Phlogiston" and would be likely to cause a confusion. Though at first unwilling to make any modification, the applicant ultimately amended his application by putting full stops after 'B' and 'I' and removing the hyphen before 'P' so that the word as it now stands in the application is, as already indicated, "B. I. Phlogiston". To this has been added the same of the applicant company and its address. Mention must also be made of the fact that on being asked whether the applicants were claiming the right to the exclusive use of the word "Phlogiston", the applicant made the required disclaimer. The mark was thereafter advertised and an opposition was entered by the Denver Chemical Manufacturing Company, the proprietors of a trade mark "Antiphlogistine" for a similar medicinal preparation. The opponents had applied for the registration of this mark "Antiphlogistine" on 29-4-1943. That application was allowed and the mark was registered on or about the 1st October, 1947. While the opponents also contended that the mark "B. I. Phlogiston" did not satisfy the requirements of Section 6(1) of the Trade Marks Act and was therefore, prima facie unregistrable, their main contention was that registration should be refused under the provisions of Section 10 Sub-section 1 of the Trade Marks Act and also under Section 8 of the same Act. Section 10(1) is in these words: "Save as provided in Sub-section (2) no trade mark shall be registered in respect of any goods or description of goods which is identical with the trade mark belonging to a different proprietor and already on the register in respect of the same goods or description of goods or which so nearly resembles such trade mark as to be likely to deceive or cause confusion." Sub-section (2) runs thus: "In case of honest concurrent use or of other special circumstances which, in the opinion of the Registrar, make it proper so to do, he may permit the registration by more than one proprietor of trade marks which are identical or nearly resemble each other *** in respect of the same goods or description of goods, subject to such conditions and limitations, if any, as the Registrar may think fit to impose." Section 8 provides inter alia: "That no trade mark should be registered which consists or contains any matter the use of which would, by reason of its being likely to deceive or to cause confusion or otherwise, be disentitled to protection in a Court of Justice."
(2.) The Deputy Registrar held that the mark sought to be registered by the appellant satisfied the requirement of Section 6(1) of the Trade Marks Act. But holding that the mark so nearly resembles the trade mark "Antiphlogistine" belonging to the opponents as to be likely to deceive or cause confusion and that there was no case made out for permission under Sub-section (2) of S, 10, he held that the mark offended against the provision of Section 10(1) of the Act. He was also of opinion that the mark was not registrable because of the provisions of Section 8 of the Act. It was on these grounds that he made the order of refusal against which the present appeal has been preferred.
(3.) The first question for decision is whether the Deputy Registrar is in error in thinking that the mark "B. I. Phlogiston" so nearly resembles the mark "Antiphlogistine" as to be likely to deceive or cause confusion. There is in this case no evidence of confusion having been actually caused, though admittedly the medicine with the mark "B. I. Phlogiston" has been on the market for a considerable time along with the medicine of the opponent company with the mark "Antiphlogistine". I am unable, however, to attach any importance to this lack of evidence as regards actual confusion. In my opinion, it is unreasonable to expect any evidence of such confusion. If there was any question of retail trader being confused when making their own purchases, one might have expected some tradesmen coming forward to give evidence that there has been such confusion, I agree that the resemblance in this case is not such as was likely to deceive or cause confusion to traders, when making their purchases. The real question is whether the resemblance is such as is likely to deceive or cause confusion to members of the public trying to obtain the medicine known to them as "Antiphlogistine". If any member of the public, has actually been confused or deceived and as a result thereof got a pot of the appellant's preparation 'B. I. Phlogiston" when they asked for and wanted a pot of "Antiphlogistine" and found later that there has been such confusion, it is unreasonable to expect that he would take the trouble of complaining to the trader from whom he got the goods. All that he was likely to do would be more careful next time and to see that no such mistake was made again. The absence of any evidence as regards any actual case of confusion or deception is, therefore, to my mind of no value whatsoever.;