B. Dayal, J.
1. These are two connected appeals under Section 76 of the Indian Trade Marks Act. Appeal No. 62 of 1954 has been filed by Shri Satya Deo Cupta, Proprietor of Roop Bilas Co., while the other appeal No. 69 of 1954 has been filed by the Amritdhara Pharmacy against Shri Satya Deo Gupta. The relevant facts, which have given rise to these appeals, may be shortly stated :
On the 19th of July, 1950, Shri Satya Deo Gupta filed an application for registration of a trade mark in respect of a biochemical medicine in class 5 for registering his trade mark as 'Lakshman Dhara.' This application was advertised in the trade marks journal and an opposition was put in by the Amritdhara Pharmacy. The case of the opposition was that in the year 1901 Pt. Thakur Datt Sharma started preparation and sale of an ayurvcdic medicine and called it by the name of Amritki-Dhara. Later on in 1903, he altered this-mark and started the use of the name of 'Amritdhara' and from that date onwards, that name has been constantly used as a trade mark for that medicine. According to the evidence sales of this 'Amritdhara' continued to rise till in 1911 they were over a lac of rupees a year. In 1947, the business was shifted from Lahore to Dehra Dun and since that year the opponents have taken steps against many people who were using the name of either 'Amrit' or 'Dhara', or both in different combinations in respect of similar medicines. None of these cases, however, was decided by the High Court, except one which has been the subject of a recent decision by a learned single Judge of this Court in Ram Rakhpal v. Amrit Dhara Pharmacy : AIR1957All683 .
That was a case in which one Ram Rakhpal applied for expunction of the trade mark 'Amritdhara', and his case was that he had been using the trade mark 'Amrit Sukh Jiwan Dhara',
2. The sole question for decision before the Registrar in the present case was whether this new trade mark 'Lakshman Dhara' was one which ought to be registered, or not, which depended upon whether the new trade mark could be held to be identicial with the trade mark belonging to the Amritdhara Pharmacy, which had already been registered, or it so nearly resembled it as to be-likely to deceive or cause confusion.
3. The Registrar after noting the fact that since 1947 the Amritdhara Pharmacy had taken action against several people, who were using either the word 'Amrit' or the word 'Dhara' andhad succeeded in many cases, he thought that the opposition should be allowed. The Registrar did not deal with the two words proposed to be registered as trade mark independently and did not express his own opinion whether the word 'Laksh-man Dhara' was, in any way, identical and was likely to be confused and to cause deception with the word, which had already been registered, namely, 'Amritdhara'.
The Registrar then went on to note that the word 'Lakshman Dhara' had been used by the applicant since 1923 but since the applicant must have known and did know that there was in the market a medicine named 'Amritdhara' the use was not bona fide and, therefore, cannot be called 'honest concurrent user'. The Registrar then went on to observe that the advertisement of the two medicines 'Amritdhara' and 'Lakshman Dhara' were going on in the same newspapers, periodicals and books simultaneously for a considerable time and he, therefore came to the conclusion that this was sufficient to prevent the opponents from successfully opposing the present application for registration as the case was covered by the phrase 'other special circumstance' used in Sub-section (2) of Section 10 of the said Act.
He, therefore, ordered registration of the trade mark 'Lakshman Dhara' subject to condition that it could be used only in the State of Uttar Pradesh, as he found that the medicine 'Lakshman Dhara' had admittedly been sold mostly in this State. As a result, therefore, the registration of the, trade mark 'Lakshman Dhara' was ordered subject to the condition mentioned above. Aggrieved by this decision, the applicant has come up in appeal to this Court praying that the registration ought to be ordered without any conditions and the opposition has appealed praying that the registration ought to be refused. The whole matter is, therefore, again open for decision.
4. Before dealing with the merits of the case, it may be mentioned that a preliminary objection was raised relating to jurisdiction of this Court to entertain the appeal. Section 76 (1) of the Trade Marks Act provides that an appeal shall lie from a decision of the Registrar under this Act to the High Court having jurisdiction at the place where the Registrar has his office and where he has decided the application. This being in Bombay, in this particular case, the Bombay High Court alone had jurisdiction to hear the appeal.
5. In answer to this objection, it was pointed out that at the time when this matter of registration was decided by the Registrar, there was a suit pending in the Civil Judge's court at Saharanpur relating to an infringement of the trade mark 'Amritdhara' by the use of the trade mark 'Lakshman Dhara'. By virtue of the proviso added to Sub-section (1) of Section 76, which says that if any suit or other proceeding concerning the trade mark in question is pending before a High Court or a District Court, the appeal shall be made to that High Court or, as the case may be, to the High Court within whose jurisdiction that District Court is situated, it is this High Court, which has jurisdiction to entertain the appeals.
We are satisfied that at the time when the Registrar decided this case, there was a civil suit pending in the Court of the Civil Judge Saharanpur within the jurisdiction of this Court and now a First Appeal from the decision of that suit ispending in this Court being First Appeal No. 285 of 1956. By virtue of the proviso to Sub-section (1) of Section 76 the present appeal therefore lies in this Court.
6. It was next argued that the proviso only refers to appeals from that suit and not to appeals from a decision of the Registrar. We do not agree with this contention. The Trade Marks Act has nothing to do with the forum of appeals against civil suits filed in civil Courts. The proviso is a proviso to Sub-section (1) of Section 76. Since Sub-section (1) provides for appeals against orders of the Registrar, the proviso must necessarily relate to appeals from the orders of the Registrar. We, therefore, see no force in this preliminary objection and hold that this Court has jurisdiction to entertain the appeals,
7. In these appeals the scope for decision is exactly the same as in any other First Appeal of this Court, This Court has, therefore, to form an independent opinion of the whole case and has to come to a conclusion, of course taking into consideration the decision of the Court below and giving due weight to that judgment.
8. In National Sewing Thread Co. Ltd. V. James Chadwick and Bros. Ltd. : 4SCR1028 , at p. 362 their Lordships were pleased to observe as follows :
'The statute creates the Registrar a tribunal for safeguarding these rights and for giving effect to the rights created by the Act, and the High Court as such without more, has been given appellate jurisdiction over the decisions of this tribunal. It is not easy to understand on what grounds it can be said that the- High Court while exercising tins-appellate jurisdiction has to exercise it in a manner different from its other appellate jurisdiction. It seems to us that this is merely an addition of a new subject matter of appeal to the appellate jurisdiction already exercised by the High Court.'
9. In 'Application by Thomas A. Smith Ltd. to register a Trade Mark,' '(1913) 30 R. P. C. 363 (C)' at p. 366 Neville, J. put the scope of the appeal before him in these words ;
'I have to determine whether, in my opinion, having regard to the evidence, the registration of this Trade Mark would tend to confusion in the trade. I do not think that I am entitled to rely upon the direction of the Comptroller. I think that I am bound to come to the best conclusion I can for myself.'
Thus, it seems clear that we have to form our own opinion upon evidence and facts whether the trade mark 'Lakshman Dhara' is likely to 'deceive or cause confusion', because there can be no doubt that it is not and it is nobody's case that it is, identical with the name of 'Amritdhara'. The other questions, whether there was an honest concurrent user or whether there was any other special circumstance sufficient to allow registration with or without conditions, arise only if we come to the conclusion that the trade marke 'Lakshman Dhara' is likely to deceive or cause confusion. If it is not, then other questions do not arise and the mark must be registered without any conditions.
10. The word 'trade mark' has been defined in Section 2 (1) (1) of the Act as follows:
' 'trade mark' means a mark used or proposed to be used in relation to goods for the purpose of indicating or so as to indicate a connection in the course of trade between the goods and some person having the right, either as proprietor or as registered user, to use the mark whether with or without any indication of identity of that person.''
11. The essence of this definition, therefore, is that the mark is intended to identify the goods as goods manufactured or produced by a particular person. In Aristoc Ltd. v. Eysta Ltd., (1945) 4 All ER 34 (D), their Lordships of the House of Lords were pleased to observe as follows :
'It was the essence of a trade mark that it should indicate origin and be used as indicative of origin. The widened language of the Trade Marks Act, 1938, Section 4, giving the registered proprietor of a trade mark in respect to any goods' the exclusive right to the use of the trade mark in relation to those goods' did not alter this essential conception of a trade mark in law.'
In this case, therefore, the word 'Amritdhara', which has been registered, means the goods produced by the Amritdhara Pharmacy. The word 'Lakshman Dhara' if registered, would mean the goods produced by Sri Satya Deo Gupta and theconfusion., which we have to consider, is whetherthe use of the word 'Lakshman Dhara' by Shri Satya Deo Gupta is likely to create in the mindsof the public before whom the goods would be exposed to sale, be that these goods bearing thetrade mark 'Lakshman Dhara' are the same goods produced by objector and sold under the name 'Amritdhara.'
12. It may be noted here that in this case, we are not concerned with the composition of the medicine produced. That would be a matter under the Patent Law. If a particular prescription is patented, any other firm may not produce a medi-cine with the same prescription. But here we haveonly to see whether the goods produced by the applicant Shri Satya Deo Gupta, are sold in themarket as goods of Shri Satya Deo Gupta or they are sold or can be passed off, as belonging to theAmritdhara Pharmacy simply because they carried the trade mark 'Lakshman Dhara.' Learned Counsel for the Lakshman Dhara Pharmacy has arguedthat the words 'Lakshman Dhara' are both words well known to the public and they are sufficiently distinct from the words Amritdhara which are also well known and the ideas contained in these two respective names are essentially different, consequently there can be no possibility of a confusion between these two. It is nobody's case that the get up or the appearance of the two labels are at all similar, Admittedly they are very differentfrom each other and the only similarity, which is alleged, is the use of the common suffix 'Dhara'.
13. The case of the Amritdhara Pharmacy isthat the word 'Amritdhara' has become so associated to the goods produced by that company, that the use of the word 'Dhara' in any combination is likely to confuse the public into believing that it is the product of the Amritdhara Pharmacy. In support of this contention, learned counsel hascited the case of J. C. Eno Ltd. v. Vishnu Chemical Co., AIR 1941 Bom 3 (E). In that case thepoint was whether the word 'Falaxar' could cause confusion with the word 'Fruit Salt', It was found that 'falaxar' was a literal translation of the word 'fruit salt' and it was held in those circumstances that the public could be deceived into believing that 'falaxar' is just the vernacular translation of the word 'fruit salt' and the goods are the same.
14. In James Chadwick and Bros. Ltd. v. National Sewing Thread Co. Ltd. : AIR1951Bom147 , the question for consideration was whether a picture of a bird, which did not look like a Vulture but which could be confused with an Eagle having the words 'Peerless Quality Vulture Brand Reel Thread' noted below it, could cause confusion with another Brand of thread which had already been registered and had the figure of an Eagle with the words 'Eagley Sewing Machine Thread' noted below it.
It was in evidence that the thread of which the mark had already been registered, was commonly called as 'Eagle' or 'Eagley Thread' and and in these circumstances, it was held that the idea behind the new trade mark, which would be left in the mind of a purchaser, is that of an Eagle and it is, therefore, likely to cause confusion. Learned counsel also relied upon the case of V. S. Subbiah Nadar v. E. P. Kumaraval Nadar, AIR 1946 PC 109 (G).
In that case a registered trade mark had the portrait of a South Indian, the proprietor, in a North Indian turban and another trade mark which was sought to be registered was also of a South Indian in a North Indian turban were considered. It was held that the essential impression of both the trade marks is the portrait of a South Indian in North Indian turban and was likely to cause confusion.
15. To our mind, the rulings cited on behalf of the Amritdhara Pharmacy, are so distinguishable that it is not possible to draw any analogy between those cases and the case before us. In the case before us, there is absolutely no symbol like the portrait of a South Indian or a bird of Prey, which can carry any usual resemblance to those who have seen it. Admittedly to the eye, the two labels are entirely different. There is no question in this case of one word being the translation of the other so that people may think that the same company has started using translation of the name for its own use. The only question here is whether the two names are such as to give an impression to a purchaser that 'Lakshaman Dhara' is the same thing and the produce of the same person as 'Amritdhara'.
16. Kerly on Trade Marks, 7th Edition at page 619 has said :
'The law as summed up by Parker, J. in Pianotist Co Ltd.'s Application, 1906-23 RPC 774 (H), a case involving the comparison of two words is as follows : 'You must take the two words. You must judge them, both by their look and by their sound. You must consider the goods to which they are to be applied. You must consider the nature and kind of customer who would be likely to buy those goods. In fact you must consider all the surrounding circumstances; and you must further considerwhat is likely to happen if each of those trade marks is used in a normal way as a trade mark for the goods of the respective owners of the marks.'
Thus the considerations for deciding a case like this where two words, which are otherwise commonly known to the public, are used, are entirely different from those which could arise for consideration in a case where visual similarity is to be considered. Although in such cases it is always a question in each case to be decided on its own facts whether there is such a similarity either in the idea behind the two words or in the sound of two words, that they are likely to cause confusion, yet it may be helpful to consider some decided cases where two word-marks have been considered by Courts of Justice.
17. In 'Re Hedley's Trade Marks' (1900) 17 EPC 719 (I), Cozens-Hardy, J. had to deal with a case where in 1898 a firm of soap manufacturers registered the words 'Mother Red Cap' in classes 47 and 48, and subsequently the words 'Red Cap' in class 47 for goods which included soap. In 1899 another firm of soap manufacturers, who applied that they did not know of such registrations, registered the words 'Night Cap' in classes 2, 47, 48 and 50, including in each class soap of some kind. In 1899 the owners of the marks 'Mother Red Cap' and 'Red Cap' applied to register 'White Cap', and thereupon became aware of the registration of 'Night Cap' and in 1900 moved to expunge 'Night Cap' on the ground of the probability of confusion with their marks. At page 722 of the report Cozens-Hardy, J. posed the question as follows :
'But then the question remains aye or no, is 'Night Cap' a mark which is calculated to deceive? ................ The real question which I have todecide is whether 'Red Cap' does suggest 'Night Cap', or whether 'Night Cap' does suggest 'Red Cap'. I think they do not. There is no similarity in sound, and I think there is no similarity in the idea of the two. The words ''Red Cap' do not suggest' 'Night Cap' and the words 'Night Cap' do not suggest 'Red Cap', and when one gets to the bottom of the thing I think this is really an attempt to assert on the part of the applicants, a monopoly in every word ending with 'Cap'.'
18. In (1913) 30 RFC 363 (C), the two words lor consideration were 'Limit'' and Summit. Nevile, J. at page 366 observed as follows :
'The words in question 'Limit' and 'Summit' are words in common use, and each of them conveys a perfectly definite idea, and the only connection between them, that I can see, is that one refers to the extreme of height, the other refers to the extreme of breadth, and undoubtedly, in the vulgar colloquialism of the day the word 'Limit' has a secondary meaning attached to it which may convey the idea of the extreme of excellence,or the extreme of the reverse.
I do not think that so far as the meaning of the words is concerned, a reference to the one would in the least leave such an impression in the mind of the reader as to make him mistake the other for it. Looking at the marks I do not think that there is any possibility of anybody being deceived. That nobody will ever make a mistake is more than I am prepared to say, but, if there isa mistake, I think it will be made by some person so foolish, or so unobservant, as in that respect to be without the pale of the protection of the law.'
19. In 'In the matter of Crook's Trade Mark,' (1914) 31 RFC 79 (J), Joyce, J. was considering a ease where the applicant had applied for registration under class 47, a mark consisting of the word 'Swarikie' without any device. Messrs'. Lever Brothers Ltd. opposed the application as they had a device of a 'Swan' and in some the word 'Swan' as well as a device more or less elaborate. He observed at page 85 :
'It can hardly be a bar to the admission of a mark that unusually stupid people, fools or idiots, may be deceived. With that I entirely agree. Otherwise, it would be impossible to register a mark in almost any case ................ I come to theconclusion that really and in truth there is not the slightest connection between the two marks, nor in my opinion is there any connection whatever between the word 'Swan' and the word, now well known 'Swankie'. ...............If the mark appliedfor be granted, there is no. serious danger of there being any confusion whatever between 'Swankie' and the 'Swan' mark of Messrs. Lever Brothers especially considering that 'Swan' has nothing whatever to do with 'Swankie'.'
20. In 'Fitchetts Ltd. v. Loubet and Co. Ltd.' (1919) 36 RPC 296 (K), Sargant, J. was considering a case where the plaintiffs were the registered owners of the trade mark 'Lito' and also another trade mark consisting of the words 'Y-To'. The suit was brought for infringement of these two trade marks by the defendants by using the trade mark 'Rito'. At page 303 the Judge observed :
' 'Rito' is a different word from 'Lito', if 'Lito' is a word at all. Rito is a word with a definite and distinct slang meaning of the right or satisfactory. It seems to me quite inadmissible that the registration of 'Lito' should prevent the registration of, amongst other things, another bi-syllabic word ending in 'ito', whether it is an invented word such as 'Brighto,' 'Nighto,' 'Slighto,'' 'Tighto,' 'Mighto,' or any other combination with the termination 'ighto', --a common termination, especially at the present day,-- & a preceding letter or letters. In my judgment there is no case for the success of the plaintiffs as regards the registered Trade Mark 'Lito'.'
Dealing with the word 'Y-To' the Judge observed on the same page :
'As to the registered Trade Mark, it is only by torturing the English language and English pronunciation, even more than is usual in these name cases, that the word as written, 'Y-To', is read and pronounced 'Whito', so as to suggest, as it is obviously meant to suggest, the quality of making the hands of the person using it white.................Even as regards sound, I think that the case as to the word 'Y-To'' is weaker than that as to 'Lito', while, as regards appealing to eye, there could be no possible ground for confusion between the word 'Lito'' when compared with the word 'Y-To'. Therefore, as regards registered Trade Mark, I feel clear that the plaintiffs have no case as regards 'Y-To'.'
21. In 'In the Matter of an application byFox and Co. to register a Trade Mark'. (1920) 37 RPC 37 (L), the two words for comparison were 'Filtrate' which was a registered trade mark and the word 'Moterate' which was sought to be registered. Astbury, J. while considering this case, took into consideration the case of Eno's Fruit Salt (E), which was also relied upon by learned counsel for the 'Amritdhara Pharmacy', and distinguished it. With regard to this he observed at page 41 :
'The mark which it was proposed to put on the baking powder contained the whole phrase 'Fruit Salt', which was really tantamount to selling it under the Opponents' name, and the majority in the House of Lords came to the conclusion that it was a reasonable view to take of that case that the use of the words 'Fruit Salt', even as applied to baking powder, might induce people to suppose that it was an output of the Eno Firm'.
The Judge did not apply the principle of this case to the case before him and observed :
'The appellants' mark is an ordinary English word, which, by reason of long user, has obtained a secondary meaning, and on that ground a short time ago they obtained its registration...............It is contended on behalf of the appellants that the suffix of these two words being identical, the respondents are not entided to obtain registration.
But I should have thought that where the suffix of two words is a common one--not common on the Register, but common in the English language, one must, at all events, have some regard to the earlier portion of the word which distinguishes one from the, other. If the suffix is common, the earlier portion of the word is the natural and necessary, and, in fact, the mark of distinction...... Here, I think that the only real commonfeature in the two words is substantially one in common use, but the real distinguishing feature is the earlier portion of each word, one conveying, as I have said, a certain primary meaning and the other not conveying it at all.'
22. After quoting (1906) 2,3 RFC 774 (H) and (1919) 36 RPC 296 (K), (the latter case has already been mentioned above), the Judge observed :
'Mr. Justice Sargant stated a principle that seems to be entirely applicable here.'
23. Lastly, in 'In the matter of London Lubricants, (1920) Limited's Application to register a Trade Mark', (1.925) 42 RPC 264 (M), Pollock, Master of the Rolls, was dealing with a case where the word 'Castrol' was already a registered Trade mark under which lubricating oil was being sold. The respondents sought to have in respect of their own lubricating oil, a mark 'Castroid'' registered but .subsequently withdrew the same and proposed a new name 'Tripcastroid' for registration, The Comptroller General allowed the mark 'Tripa-castroid' to be registered and there was an appeal. Pollock, Master of the Rolls, put the question before himself in this way at page 276 :
'In order to see whether it should be registered, we have to consider whether 'Tripcastroid' so nearly resembles the Trade Mark 'Castrol', which i.s the registered Trade Mark of the appellants, as to be calculated to deceive; and we have to consider the interests of the general public who might be misled by confusion of the two words.'
24. At page 277, it was observed :
'The truth of the matter is that, so long as the word 'Tripcastroid' is used there seems to be upon the evidence, and, indeed, upon a reasonable-construction and appreciation of the two words, no reasonable ground for thinking that the public will be confused or that there will be a deception by goods sold as 'Tripcastroid' being mistaken for 'Castrol'.
Then, says Sir Duncan Kerly, 'one cannot suppose that the word 'Trip' will be maintained, such is the wide appreciation of 'Castrol', and such are the habits of mankind to try to shorten such a long word as 'Tripcastroid', that you will find that ''Trip' is dropped, and then the word will become 'Castroid', and there may be confusion. I am not satisfied on either of those points ..................... But, accepting the view that the answerto the question must be taken as uncertain, I still hold the view that you cannot neglect the value of the prefix 'Trip' as being of importance in the total word which is sought to be registered'.
25. Sargant Lord Justice observed at page 278 :
'But not, I think, the full extent, of the Opponents' real claim is, in my judgment, indicated by the terms of the letter of 5th of May, 1922, when they claimed that the word 'Castrol', through wide advertising and long and extensive user, 'has become so closely associated with our clients' oils that any word 'having the prefix 'Cas' or 'Castr' would be sure to lead to confusion'. That letter, in a homely phrase, has let the cat out of the bag ................. The Opponents have now gone on tocontend that the syllable 'Cas'' or 'Castr' cannot be used by the Applicants even in the centre of the word that they desired to register.................
Therefore, it seems to me, one must decide this question of the probability of deception purely on a consideration of the relative nature of the two words themselves, consisting of, first, the Opponents' Trade Mark, and, secondly, the Trade Marrk which the Applicants seek to register. That being so, and concentrating on the construction of those two 'words, I must say that, to my mind, the two words ''Tripcastroid'' and Castrol' are so-different as to preclude any probability of confusion or deception.
The only similarity in the word 'Tripcastroid' to 'Castrol' is in the letters composing the centre of the new word................. Here thesyllable that begins the word sought to be registered is a completely new and different syllable, and, beyond that, is one that is of considerable importance, because it has a special connotation in conjunction with the Applicants' goods, as signifying that the goods in question are their first quality goods. In my judgment, having regard to the complete amalgamation in the word 'Tripcastroid' of the syllable 'Trip'' with the rest of the word, I see no reason whatever for thinking that the syllable 'Trip' would in ordinary use be dropped.'
26. Applying the principles laid down in the above noted cases, to the facts of the present case before us, we are of opinion that the words 'Amrit' and 'Dhara' are common words in Hindi language and everybody knows the significance and the meaning of those words. Being a compound word, it means 'current of nectar'' or the 'flow ofnectar', while the two words 'Lakshman' and 'Dhara' are also well known common words and combined together would mean 'current or flow of Lakshman'.
There is no possibility of any Indian confusing the two ideas. Even phonetical differences are wide enough not to confuse anybody. The claim of the Amritdhara Pharmacy that both the words 'Amrit' and 'Dhara'' have become so associated with their goods that the use of each part separately or in any combination is likely to mislead, is an untenable claim. The whole phrase 'Amritdhara' has been registered and the monopoly has to be confined only to the use of the whole word. The words of common language like 'Amrit' and 'Dhara' cannot be made the monopoly of any individual. We, therefore, see no reason to disallow registration of the trade mark 'Lakshman Dhara'.
27. This normally would have been enough to dispose of the whole appeal but in deference to the lengthy arguments that were advanced on the other questions raised, we will shortly deal with them also.
28. Even supposing that Lakshman Dhara was a mark, which was likely to cause confusion, the question raised was, 'whether the user of the term Lakshman Dhara was an honest concurrent user' enough to entitle him to registration. The Registrar has found that Shri Satya Deo Gupta had started the use of this name for his medicine in 11923. Thereafter, he has extensively advertised his medicine as stated above in Journals and Periodicals openly and many of those were the media through which Amritdhara was also being advertised.
In 1933 the sales of Lakshmandhara amounted to Rs. 1398/- and in 1942 they rose to Rs. 4973/- in 1943 to Rs. 10,000/ and the highest figure in 3949, was Rs. 43,000/-. The only fact, that Shri Satya Deo Gupta must have known of the existence of the trade mark 'Amritdhara', has led the Registrar to the conclusion that the use was 'not honest'. We are unable to agree with that conclusion.
Shri Satya Deo Gupta could have very honestly believed that the name 'Lakshman Dhara'' was entirely different from the name 'Amritdhara' and that he was entitled to use this name and in that belief, when he openly advertised his medicine and increased its sale, as stated above, no element of dishonesty can be attributed to him. We, therefore, hold that on the basis of 'honest concurrent user' from 1923 right upto 1942, when the trade mark 'Amritdhara' was registered, the registration ought to be granted.
29. It was argued by learned counsel for the Amritdhara Pharmacy that the finding of the Registrar, to the effect that simply because both the medicines were being advertised in the same Journals the Amritdhara Pharmacy must be held to have acquiesced in the use of the trade mark 'Lakshman Dhara'' by Shri Satya Deo Gupta, is not a proper finding.
His contention is that the trade mark 'Amritdhara' is a registered trade mark to which he is entitled in law exclusively and no act on behalf of the Amritdhara Pharmacy can amount to 'other special circumstance' unless it amounts to estoppel or abandonment of his right to restrain the use of Lakshman Dhara. As stated above, it is not necessary for us to decide this question but it may be observed that in AIR 1946 PC 109 at p. 114 (G), their Lordships of the Privy Council observed as follows :
'Evidence of long concurrent user to the knowledge of the plaintiff in such circumstances that the plaintiff must be deemed to have acquiesced in such user and waived any right to object to it might suffice.'
30. It is thus clear that in order to invoke the estoppel, there must be these elements in evi-dence, namely, that the long concurrent user, though not honest, was within the knowledge of the objector; that the circumstances were such as to lead to the reasonable inference that the objector waived his right to object. The mere fact that both the medicines were being advertised in the same Journals or Periodicals does not necessarily mean that the attention of the Amritdhara Pharmacy was drawn to the use of the word 'Lakshman Dhara'' by Sri Satya Deo Gupta, and still less can any inference be drawn from this that this was a circumstance from which an inference can be drawn that the Amritdhara Pharmacy abandoned its right to object.
If, therefore, we had not come to the above two findings that the two names are entirely different in idea and in sound and, therefore, cannot cause any confusion and also that the use by Shri Satya Deo Gupta was an honest concurrent user, the result would have been that the application for registration of the trade mark 'Lakshman Dhara' would have been rejected.
31. In the result, we hold that there is no valid objection to the registration of the trade mark 'Lakshman Dhara' and the Registrar is directed to register the trade mark 'Lakshman Dhara' without any restrictions. F. A. F. O. No. 62 of 1954 is, therefore, allowed with costs while F. A. F. O. No. 69 of 1954 is dismissed with costs.