B LBETAIAH SETTY Vs. V RSUBRAMANYAM TRADING AS MANYAM AND CO

JUDGEMENT

(1.) This is an appeal against the decision of the Ex-Officio Deputy Registrar of Trade Marks, Bangalore, refusing to register the Appellants' trade mark after considering the opposition of the Respondent The mark consists of two rectangular bars having in its middle an ornamental device of a star and with the words 'Raja agarbathies' displayed prominently in Hindi and English characters on the two bars. The registration of the mark was sought for in respect of Agarbathies (incense sticks) in Class 3 of the Fourth Schedule to the Trade Marks Rules, 1942. The Respondent opposed the registration on the ground that the applicants' mark was closely similar to Trade Mark No. 86443 which he has got registered in Class 3 in respect of soaps, perfumery, cosmetics, hair lotions and essential oils and that as agarbathies came under the same description of perfumery, Section 10(1) of the Trade Marks Act was a bar to registration of the applicant's trade mark. It was also urged by the Respondent that even independently of Section 10 (1) the applicant's mark came within the mischief of Section 8 as its use was likely to deceive or cause confusion to the trade and to consumers as they were likely to regard the applicant's agarbathies as having been produced and marketed by the Opponent (Respondent). The applicant denied both these allegations and further relied on Section 10(2) of the Act on the ground that he had been making use of the mark in respect of agarbathies from 1936 and that it was well within the knowledge of the opponent who had acquiesced in such use. The applicant also relied on Section 25 of the Trade Marks Act on the ground that he had been continuously using the mark long prior to the registration of the opponent's mark.

(2.) The Deputy Registrar held that the marks were closely similar but that Section 10(1) did not apply to the applicant's mark as agarbathies did not rail under the description 'perfumery'. He however came to the conclusion that the use of the mark applied for was calculated to cause deception and to create confusion in the minds of the consumers as they were likely to think that the agarbathies were the opponent's manufacture on account of the use of the word 'Raja' and that, therefore, the case came under the mischief of Section 8. He held that even though the applicant was using various marks in which word 'Raja' was an important feature since 1937 it had not been established that the mark in question had been so used and that, therefore, the applicant could not avail himself of the benefit of either Section 10(2) or Section 25 of the Act. In the result, he refused the application.

(3.) The Deputy Registrar's view in regard to the applicability of Section 10(2) and Section 25 of the Act to the facts of the case is clearly right. The honest concurrent use relied upon must refer to the trade mark sought to be registered and the applicant has not shown that the trade mark now sought to be registered has been so used. It is not enough if one feature of it, even though it may be a prominent feature, has been used. As regards Section 25, the latter part of Clause (b), which it is that applies to this case, attracts the provisions of Section 10(2). Hence the applicant cannot rely on that provision either.