CIBA LTD Vs. M RAMALINGAM AND S SUBRAMANIAM TRADING IN THE NAME OF SOUTH INDIAN MANUFACTURING CO

JUDGEMENT

(1.) THIS is a trade mark appeal and it came to be filed under the following circumstances. The appellants, who are a Swiss company, applied to the Registrar of Trade Marks on the 2nd July 1942 for registration of their trade marks 'ciba', 'ciba' (monogram), 'cibalgin', 'ciba-zol' and 'cibalbumin'. These marks are used in connection with pharmaceutical preparations. The mark 'ciba' was registered on 24-8-1946, the mark 'ciba' (monogram) was registered on 27-10-1944, the mark 'cibalgin' was registered on 16-3-1944, the mark 'cibazol' was registered on 27-7-1944 and the mark 'cibalbumin' was registered on 16-3-1944. On the 22nd December 1943 an application was made by the respondents for registration of a label which contained the word 'cibol'. This application was No. 90423. On the 2nd February 1945 they made two other applications Nos. 105450 and 105451 for registration of design and colour of the same name. The Cibol label was advertised on the 1st November 1947. This trade mark was amended so as to be only the word 'cibol' and the amended trade mark was advertised on the 1st January 1949. On the 3rd November 1949 'cibol' was registered by the Registrar of Trade Marks. On the 16th March 1950 the appellants applied for rectification of the registration. On the 26th March 1954 the Registrar ordered the rectification by removal of the respondents' trade mark. An appeal was preferred by the respondents to Mr. Justice Coyajee and Mr. Justice Coyajee reversed the decision of the Registrar, and the appellants have come in appeal.

(2.) THE application of the appellants is under Section 46 of the Trade Marks Act, 1940, and Sub-section (1) of that section provides:

(3.) NOW, in considering both Section 46 and Section 10 it has got to be remembered that the primary duty of the Court is towards the public and the maintenance of the purity of the register. When a case is sought to be made out that a particular trade mark is likely to deceive or cause confusion, the contest is not so much between the parties to the litigation as it is a contest between the party defending his right to a particular trade mark and the public, and the duty of the Court must always be to protect the public irrespective of what hardship or inconvenience it may cause to a particular party whose trade mark is likely to deceive or cause confusion. The object of maintaining a trade mark register is that the public should know whose goods they are buying and with whom particular goods are associated. It is therefore essential that the register should not contain trade marks which are identical or which so closely resemble each other that an unwary purchaser may be likely to be deceived by thinking that he is buying the goods of a particular person or a particular firm or a particular industry, whereas he is buying the goods at another person or firm or industry.