MOUNT METTUR PHARMACEUTICALS LTD Vs. ORTHA PHARMACEUTICALS CORPORATION

JUDGEMENT

(1.) - This Letters Patent Appeal is directed against the judgment of Ganesan, J. in C. M. A. 278 of 1966 and arises under the following circumstances. The appellant which is the Mount Mettur Pharmaceuticals Ltd., applied to the Assistant Registrar of Trade Marks, Madras, for the registration of its trade mark 'Utogynol' in Part A of the Register in clause 5 in respect of goods which are designated as 'medicinal preparations'. This application was opposed by the respondent, Ortho Pharmaceuticals Corporation, who had registered its trade mark 'Ortho -Gynol' in India in May 1943, in respect of the same type of goods, viz., medicinal preparations. The main ground of the opposition was that the appellant's trade mark so nearly resembles the respondent's that it is likely to cause confusion and deception within the meaning of Section 12 (1) of the Trade and Merchandise Marks Act, 1958. The Assistant Registrar upheld the respondent's objection and refused to register the appellant's trade mark. The appeal filed by the appellant against the order of the Assistant Registrar was disposed of by Ganesan, J. It is against the dismissal of the appeal that the present Letters Patent Appeal has been filed.

(2.) THE contest is between the trade name 'Ortho -Gynol' of the 1st respondent and the trade name 'Utogynol' of the appellant. First, we will take the two words and judge them with reference to their look and their sound. Each of those trade names consists of four syllables, the last two of which, Gynol are common. The word Gynol does not appear to be a peculiar invention of the respondent -company. 'Gyno' according to the Concise Oxford Dictionary means 'ovary'. It is a shortened form of Gynaeco, which is derived from a Greek word meaning women. The addition of the letter 'L' to 'Gyno' seems to have been effected in accordance with the trade fashion as exemplified by numerous drugs like 'Dettol', 'Glysol', 'Ferodol' etc. In fact, the appellant's counsel has filed a list before us containing as many as 61 medicinal preparations manufactured by standard companies ending with the letters 'OL' out of which 44 end with 'Nol'. The expression 'Gynol' cannot therefore be said to be an invention, and consequently, the exclusive property of the first respondent.

(3.) REFERENCE has been made by learned counsel for the respondent to judicial pronouncements upon the resemblance between 'Sri Andal' and 'Sri Ambal' (vide C. Krishna Chettiar v. Ambal and Co., AIR 1970 SC 146) between 'Thanga Baspam' and 'Thanga Pavun' (vide Arumugha Pillai v. Syed Abbas, 1964 -1 Mad LJ 151 : (AIR 1964 Mad 204)); between 'Lakshmandhara' and 'Amritdhara' (vide Amritdhara Pharmacy v. Satya Deo, AIR 1963 SC 449) and between 'B. I. Phalogiston' and 'Antiphologistine' (vide Bengal Immunity Co. v. D. C. Manufacturing Co., AIR 1959 Cal 636). We think that these authorities can give us no real guidance in deciding whether 'Orthogynol' and 'Utogynol' resemble each other in sound and look. We are clearly of the opinion that they do not. We think that a person who knows one of the two trade marks and has an imperfect recollection of the other is not likely to be deceived or confused.