1. This petition is an appeal against an order of the Registrar of Trade Marks dated 1-5-1957 refusing to accept the Petitioner's application dated 7-5-1954 for registration of trade mark. The relevant facts which arise on this appeal arc as follows:
2. The opponents had been using a mark containing 'camel' imprint since about 1920 in respect of bidi manufactured and sold by them in districts of Nasik, Khandesh and other districts in the States of Bombay and Hyderabad. That mark is annexed as Ex. B to the petition before me. In 1942 the opponents' mark was registered under the Trade Marks Act. The petitioner's case is that in 1936 one Shankar Govind Patil commenced to use the trade mark which is annexed us Ex. A to the petition and containing 'camel' imprint in connection with bidi manufactured by him and sold in a small place called Sinnar situate in Nasik district. Shankar Govind Patil made a declaration in respect of that mark which is dated 17-11-1936. Shankar Govind Patil has made an affidavit dated 7-9-1936 in the proceedings. It is his case that in 1936-37 he for a few days carried on business under that mark for Messrs. Premiaj Bhimraj a firm of merchants trading at Jalgaon. The mark was prepared by Shankar Govind Patil for Messrs. Premraj Bhivraj and he had made the declaration and registration of that mark for Messrs. Premraj Bhivraj. He has in his affidavit stated that he carried on business for one or two months and stopped the same, that he had only two workmen in his business and that in 1938 he sold the label of the mark to Messrs. Premraj Bhivraj because that label was not current in the market. Messrs. Premraj Bhivraj appeared to have purchased merely the label or the mark for Rs. 99/- by a sale-deed dated 22-2-1938. Messrs. Premraj Bhivraj appear to have become a partnership firm and one Dhauraj Bhivraj a partner of that firm has made an affidavit dated 25-8-1956 in these proceedings. It is the case of the partners that Messrs. Premraj Bhivraj had for 8 to 12 months tried to sell bidis under that mark in Khandesh district and about that year 1941 the bidi factories of Messrs. Premraj Bhivraj were closed altogether and no bidis were manufactured and the mark discontinued altogether. Messrs. Premraj Bhivraj appear to have sold merely the mark to a partnership firm of M/s. Patil and Co. which carried on, business in Bidis at Bhusaval by a sale-deed dated 22-6-1945 for the price of Rs. 500/-, The sale-deed does not show that Messrs. Premraj Bhivraj were carrying on business in bidis under that mark at the date of sale. Messrs. Patil and Co. appear to have been dissolved and on dissolution by a deed of sate dated 10-7-1945 one Duba Rangu Chaudhari being a partner of the dissolved partnership firm became the owner of the mark upon payment of a sum of Rs. 375/-. Duba Chaudhari appears to have sold the mark to the petitioner by a sale-deed dated 9-4-1954. In that deed of sale the mark of the petitioner is referred to as 'Pakhal mark'. Though the deed purports to sell the mark along with goodwill; in fact there was not business of any kind then in existence and the question of sale of goodwill could not have arisen. In the deed of sale it is mentioned that 'As the Bidi workshop of the Bidis of the above label is closed, the goods bearing the said trade mark arc not current in the market'. The price paid for sale of the mark was Rs. 351/-. Even before a month had elapsed since the sale of. the mark in his favour on 4-5-1954. the petitioner applied to the Registrar of Trade Marks for registration of his mark in clause 34 in respect of Bidis. In that application it is mentioned that the petitioner carried on business in the name of Messrs. Chhaganlal Kishorbhai Patel at Jalgaon in East Khandesli. In his affidavit dated 24-9-1954 the petitioner made reference to the present sales of his Bidis and alleged that the mark had been in use for the last 80 years and more. In a further affidavit dated 25-11-1954 the petitioner purported to give figure of sales under the mark which came to be owned by the petitioner. He purported to state that the sales were between 1936 and 1938 of the amount of Rs. 27,000/- and between 1944 and 1953 of the amount of Rs. 32,000/-. All these figures are found to be false by the Registrar. Having regard to their mark containing 'camel' imprint the opponents filed their notice of opposition under Section 15(2) of the Trade Marks Act on 11-4-1955. In their notice the opponents pointed out that they were registered owners of Marks Nos. 100274, 100275 and 119829 containing 'camel' imprint They further pointed out in detail that the Petitioner's mark contained the device of a camel as its central figure and its main and essential feature and so nearly resembled the opponent's registered trade mark, that it was likely to deceive or cause confusion. They also pointed out that the petitioner's mark when used in relation to bidis would be disentitled to protection in Courts of Justice by reason of its being likely to deceive and cause confusion. In the circumstances the opponents under the provisions of Sections 8(a) and 10(1) of the Trade Marks Act submitted that the petitioner's application for registration should not be granted.
3. Affidavits were filed on behalf of both the sides thereafter in support of their contentions before the Registrar. The questions which arose before the Registrar were:
1. Whether by reason of the petitioner's mark being likely to deceive or cause contusion was disentitled to protection in a Court of Justice as mentioned in Section 8(a) of the Act;
2. Whether the petitioner's mark so nearly resembled the registered trade mark of the opponents as to be likely to deceive or cause confusion within the meaning of Section 10(1) of the Act; and
3. Whether in the matter of the petitioner's mark there was an honest and concurrent use of the mark with the registered mark of the opponents, and there were circumstances under which the Registrar in his discretion should permit the registration of the petitioner's mark and grant his application in respect thereof.
4. On each of these questions the Registrar considered the evidence led on behalf of both the sides and made his findings against the contentions raised by the petitioner.
5. The matter of registration is essentially left to the discretion of the Registrar. Particularly when the Registrar comes to the conclusion that under the provisions of Section. 8(a) of the Act and by reason of the mark of the applicant being likely to deceive or to cause confusion he was disentitled to protection in a Court of Justice, this Court in appeal would certainly be very reluctant to interfere with the use of such discretion. I have even so carefully gone through the Judgment of the Registrar in that connection and I find myself in complete agreement with the conclusions arrived at by the Registrar. The Registrar has rightly pointed out in his judgment that in the three registered trade marks of the opponents the main device or mark or essential feature is the imprint of a camel in each of the marks. He has also by examining and comparing the mark of the petitioners with the mark of the opponents rightly made a finding that the essential feature and/or device used by the petitioner in their trade mark also consists oi a camel. He has pointed out that though in certain details the mark of the opponents is not identical with and different from the mark of the petitioners, even so the main feature and get up of the mark of the petitioners is such that an ordinary unwary purchaser would be deceived and the mark would cause confusion to such a purchaser. It is not necessary for me to compare in detail the two marks.
6. In these matters really the identity of design is not necessarily to be found so as to hold that the use of the applicant's mark would deceive or cause confusion. What one has to decide is whether a particular trade mark was likely to deceive or cause confusion. What is important is to find out what is-the distinguishing or essential feature of the trade mark already registered and what is the main feature, or the main idea underlying that trade mark, and if it is found that the trade mark whose registration is sought contains the same distinguishing or essential feature or conveys the same idea, then ordinarily the trade mark should not be registered. The burden of proving that the particular mark which a person seeks to register is not likely to deceive or cause confusion is upon the applicant. It is for him to satisfy the Registrar or the Court that his trade mark does not fall within the prohibition of Section 8 or 10 of the Act and therefore the same should be registered. Now as I have already pointed out on a mere look at the two marks it is absolutely apparent that the-main or essential, feature and distinctive character of each of the marks are so similar that an ordinary unwary purchaser would be deceived and get confused. The colour and size of the two marks appear to be absolutely same and similar. The wordings printed on each of the marks also appear to be so-placed that one would at a glance feel that they are the same and similar. The main feature and idea of the mark appear to be figure of a camel which exists in both the marks. The camel is further contained in an oblong circle and unless one examines and compares both by placing one against the other one would not realise that the mark is not the same,
7. From the history of the facts as related by both sides it appears to me that originally in 1930 Shankar Patil devised the mark which is now claimed by the petitioner for passing off the goods under that mark as if they had their origin with one opponents' manufacture. Whether Shankar Patil succeeded in his intention or not is not relevant. But his affidavit is that he did not trade with his mark for more than two months. It is also clear to me that Messrs. Premraj Bhiwaj purchased over this mark which is now claimed by the petitioner with, intent to pass off their goods as goods of the manufacture of the opponents. Whether they succeeded in that intention is not relevant and I am not concerned with the same, ft however appears from the affidavits of those who carried on the business of Messrs. Premraj Bhivraj at relevant time that that business had altogether stopped in 1945 and was not being carried on. Duba Chaudhari of Messrs. Patil and Co, ultimately appears to have retained that mark for the small price of Rs. 350/-. He has made an affidavit dated 3-9-1955 in these proceedings. As is rightly pointed out by the Registrar who has examined ills statements in great detail that he is not a witness of truth. The statements made in his affidavit appear to be prima facie false. In his affidavit Duba Chaudhari purported to state that between 1945 and 1953 there had been sales of bidis under the mark now claimed by the petitioner of the amount varying between Rs. 15,000/- and 28,000/-. The opponents by their affidavit denied this allegation altogether and demanded production of documents in proof of the statements. No documents of any kind were produced in support of these statements. These statements were contradictory to the statements made by the petitioner in his previous affidavits. I cannot appreciate why the petitioner did not produce the books of account of his seller Duba Chaudhari because the impression one gathers from his affidavit is that the books of account would he existing. It is however significant that the sale deed executed by Duba Chaudhari in favour of the petitioner specifically mentions that 'the Bidi workshop of the bidis of the above label (mark) is closed. The goods bearing the said label (trade mark) are not current in the market'. I cannot understand how having made that statement in the deed of sale dated 9-4-1954 Duba Chaudhari was persuaded to make an affidavit which prima facie is contradictory of that statement. Duba Chaudhari's statements are not reliable. Mr. Shavaksha for the petitioner has mainly relied upon this affidavit of Duba Chaudhari in support of all his contentions including those regarding the concurrent user and honest user of the similar mark. As the statements of Duba Chaudhari cannot be accepted, I cannot accept the contentions of Mr. Shavaksha that there was concurrent user of a similar mark as of the opponents by the petitioner and his processors-in-title. In any case the facts as appearing from the affidavits and admitted before me only must lead one to the conclusion that even if there was a concurrent user the user was dishonest and was made with intent to pass off the goods of the petitioner and his predecessors-in-title as if they were manufactured by the opponents.
8. As I have already stated in fact I do not see any reason to differ from the finding of the Registrar on the questions which arose under Section 8(a) of the Act I agree with him that by reason of the petitioner's mark being likely to deceive and cause confusion it is disentitled to protection in Court of Justice and that accordingly under the provisions of Section 8(a) the petitioner is not entitled to have his mark registered under the Act.
9. As regards the questions which arose under Sections 10(1) and 10(2) of the Act I accept the findings of the Registrar as correct. The only criticism levelled in this matter against his judgment by Mr. Shavaksha was that the Registrar had not taken into consideration the statements made on affidavits in support of the contentions of the petitioner as regards the concurrent user and/or user of the petitioner's mark by the petitioner and his predecessor-in-title. I have whilst considering the contentions of the petitioner in regard to questions arising under Section 8(a) of the Act considered the whole of the evidence put forth before the Registrar. It appears to me that after the opponents pointed out true facts by their notice of opposition, the petitioner has obtained certain affidavits. The statements made on these affidavits have been found to be false by the Registrar for the reasons-discussed in detail by him. I entirely agree with the reasons given by him and I am also of the view that each of the affidavits produced in support of the contentions of the petitioner contains utterly false statements and in any case cannot be proof of honest concurrent user or of any circumstances under which the petitioner's mark should be accepted for registration under the Act. As the Registrar has discussed these affidavits in detail no purpose can be served by my discussing the same once again in this judgment,
10. Mr. Shavaksha has also contended that the opponents have not produced any direct evidence of confusion having been caused to any of the purchasers. In the first place it would be difficult for any manufacturer of Bidis to get evidence of consumers of bidis so as to prove that he was confused whilst purchasing bidis. In any case since the sales, of bidis with the mark now claimed by the petitioner could never have been large, it would be further difficult to get evidence of confusion. Such evidence is not absolutely necessary to be produced whilst opposing the application for registration. The non-existence of such direct evidence in my view does not prove at all that the petitioner's mark which in my view resembles and very nearly resembles the mark of the opponents is not likely to deceive or cause confusion,
11. In this view of the matter the petitioner must fail. Petition is dismissed with costs.
12. Petition dismissed.