Nittoor Sreenivasa Rau, J.
1. The Appellant applied for the registration of his trade mark in respect of beedies falling under Clause 34 of Schedule 4 to the Trade Marks Rules. The Respondent opposed the registration and the opposition was upheld by the ex-officio Deputy Registrar of Trade Marks, Bangalore, and the registration was refused. The appeal is directed against this decision.
2. The Appellant's trade mark consists of A label containing the device of a pedestal supporting at its head five stems each carrying a rose, the stems being arranged fanwise. The words 'Aindu Roja Mark Beedi' (meaning five roses mark beedi) in the Tamil alphabet are found above the device. Another mark containing substantially the same device, but with the words 'Aindu Roja Poo Mark Beedi' (meaning five rose flower mark beedi) is to be found in the duplicate. It is the mark with the latter set of words that was advertised in the Trade Marks Journal.
The Respondent's opposition was based onthe ground that he had been making use of a trade mark consisting of a branch of a rose plant having a full blown rose and four buds on it, described and known as Poo Mark Beedi, and as the Appellant's mark also consisted' of five flowers with the words 'Aindu Roja Poo Mark', the Appellant's mark was calculated to cause confusion and to deceive.
3. An examination of the two marks no doubt discloses several differences in regard to particulars. The Appellant's mark contains five fully developed roses arranged fanwise. The Respondent's mark has only one full blown rose and four buds in different stages of development on the branch of a rose plant. The order in which they appear is also different. On this basis it is urged for the Appellant that there was no possibility of the customers being misled or deceived cr any confusion being caused. It is further urged that the Appellant has been making use of the mark for many years prior to the date of his application and that therefore his mark is entitled to registration under Section 10(2) of the Act.
It should be mentioned that though at the time the Respondent filed his opposition his mark had not been registered, it was on the register before the opposition came up for consideration. The Deputy Registrar thought that since, at the time of the disposal of the opposition, the Respondent's mark was already on the Register it was incumbent upon him to consider the question whether the Appellant's mark came within the mischief of Section 10 (1) of the Act. He accordingly considered the matter both under Section 10(1) and Section 8 of the Act and came to the conclusion that the Appellant's mark offended both the provisions. As regards Section 10 (2) he was of the view that the Appellant had not established concurrent user. It appears to us that the Deputy Registrar's views on all these matters are well-founded.
4. This is not a case of identity of the two marks since there are obvious differences between the two. The important matter for consideration under Section 10(1), therefore, is whether me so nearly resembles the other as to be likely to deceive or cause confusion. It is well established that it is not superficial differences or differences in detail that matter but that the. question has to be determined bearing in mind the essential features of the two marks. In doing so, it is not the visual impression created when the two marks are seen side by side that should constitute the criterion but whether the essential features of the mark in question leave such an impression that they are likely to cause confusion or deception in relation to the customer's recollection of the essential features of the other mark. As was observed in the case re-ported in James C. & Bros. v. N.S.T. Co., : AIR1951Bom147 (A),
'It is impossible to accept that a man looking at a trade mark would take in every single feature of the trade mark. The question would be, what would be normally retain in his mind after looking at the trade mark? What would be the salient feature of the trade mark which in future would lead him to associate the particular goods with that trade mark?'
In that case the essential feature in both the marks was the figure of a bird conveying the idea of an eagle. A comparison of the two marks disclosed many differences in regard to their posture, poise, position of the head, description of the wings etc. It was held that these differences did not matter since the essential feature was the eagle and it was that feature that would leave the predominant impression on the mind of the customer. In the case on hand, the essential feature of; the Respondent's mark is, as held by the Deputy Registrar, the device of a rose together with four other roses in different stages of development, the mark also being known as the Poo Mark. The distinctive feature of the Appellant's mark also is five roses and the Appellant called the mark 'Ainu Roja Poo Mark'. It appears to us that the salient features are so similar as to give rise to confusion and to lend themselves to deception.
5. As regards Section 8, the Deputy Registrar's view is that the Respondent's case is even stronger. It may be mentioned that the scope of Section 3 is wider than that of Section 10(1) since it takes into account the possibility of deception and confusion independently of similarity to any mark already registered. The evidence adduced by the Respondent bears out that his beedies have been in the market from 1922 and are sold in large quantities and are known as 'Poo Mark Beedi' or 'Poo Beedi'. The question is whether the use of the mark in question is likely to cause confusion in the minds of the customers or is likely to lend itself to deception, bearing in mind the position acquired by the Respondent's beedies.
In this connection, reference may be made to the decision of the Calcutta High Court in Appeal No. 69 of 1949 (B). That was a case in which the applicant sought registration of a mark connected with the beedi trade and the present respondent opposed the registration. The mark of the appellant consisted of a central feature of a flower plant in a flower pot and the plant had seven stems with flowers at the end of five of them. The Tamil expression meaning five flower mark appeared in the mark. There were thus several dissimilarities in the features of the two trade marks. The respondent's trade mark was the same as the one on the basis of which he has opposed the present application also. The Court took the view that though there were dissimilarities, the central features of the two marks were so similar as to cause deception and confusion. Dealing with this aspect of the matter the learned Chief Justice said:
'It is not difficult to accept this evidence on behalf of the opponents because as I have said the central feature of their mark is a Rose with four buds surrounding it and the word 'poo' in Tamil. Anybody seeing that (Respondent's) label might well describe the goods as 'Poo Beedies' and I have little doubt that the goods are asked for as 'Poo Beedies'. It must be remembered that the market for beedies is a market made up of the poorer classes. It is the favourite smoke of coolies and such like. They are not smoked as a rule by educated, literate people and it appears of me that what is most important in a trade of this kind is the name by which the goods are known. On the evidence I am abundantly satisfied that the opponent-respondent's beedies are known to the smoking public as 'Poo Beedies' and when a customer asks for a 'Poo Beedie' he expects to get the respondents' beedies.
The description 'Poo Beedi' could also equally aptly be applied to the beedies of the appellant sold under the proposed mark. An illiterate man looking at the proposed mark would immediately regard it as a flower mark. He might or might not notice that there were five flowers, but what would impress itself upon his mind would be the fact that there were flowers in the forefront of the mark. A man seeing that mark might well come to the conclusion that it was the mark of the respondents' beedies known as 'Poo Beedies'. Further it appears to me that if a customer wishing to obtain the respondents' beedies walked into a shop and asked for 'Poo Beedies' he might quite honestly be given the appellant's beedies because the description would apply to them as well.
As it, was in my view established that the respondent's beedies had come to be known as 'Poo Beedies' there would be a very real danger of confusion if the, appellant's proposed mark was registered.'
The same considerations apply to this case also. There is the same similarity of the central feature in the two marks. The class of customers is the same. These factors would result in a very real danger of confusion. The Deputy Registrar's view on this matter must therefore be held to be well justified.
6. The only other question to be considered is the concurrent user of his mark by the appellant. It is true that he had his mark registered With the Madras Chamber of Commerce in 1926. But that mark, as noted by the Deputy Registrar, is not identical with the mark in question. The words 'Aindu Roja Poo Mark Beedi' do not appear in it. Further there is no substantial evidence of user from that time up to about 1944. The Appellant in his affidavit has no doubt given figures of sale for the three years commencing with 1944. Those figures indicate sales of a meagre character in a very limited area and are not enough to bear out the Appellant's case for concurrent user. The other evidence adduced in the form of affidavits is of a vague and general character and refers to the marketing of 'Five Rose Beedies' by the appellant and dons not show the use of the mark now sought to be registered. It cannot, therefore, be said that the appellant has established the concurrent user of the mark in question.
7. We thus see no reason to interfere with the decision of the Deputy Registrar. This ap-peal is therefore dismissed with costs. (Advocate's fee Rs. 100/-.)
S.R. Das Gupta, C.J.
8. I agree.
9. Appeal dismissed.