1. This appeal under Section 109 of the Trade and Merchandise Marks Act, 1958 (hereinafter called the 'Act') is directed against the order of the Assistant Registrar for Trade Marks, New Delhi by which he dismissed the application of Messrs. Lakhpat Rai Sampat Rai Sadh (hereinafter called the 'appellants') under Section 56(2) of the Act for rectification of the Register in respect of entry relating to the registered trade mark No. 186774 in Clause 5. registered in respect of 'Banslochan', and Avurvedic medicine in the name of Dhanpat Rai Goal (herein called the 'respondent') Rectification was sought either by expunging the entry relating to the registered trade mark No. 186774 registered as of September 5, 1958 or by varying it by deleting the device of 'bamboo grove' and word 'Banslochan' appearing in the mark.
2. According to the facts as found by the Assistant Registrar of Trade Marks and about which there is no dispute the appellants claim to have been manufacturing and selling for more than 75 years an Avurvedic tonic for health named 'Banslochan' the pictorial device of a jungle or grove of bamboos with the words 'Bans ka Jungle' and 'Asal Banslochan'. The pictorial device of a bamboo grove claimed to be an artistic diplay of bambos was adopted by them in 1945. since then they have been continuously and extensively using the said trade mark in respect of their goods.The value of their 'Banslochan'sold under the trade mark amounted to several lakhs of rupeesevery year the had deen spending on its publicity over 10,000 a year. They have been recognized as the oldest and most reliable manufacturers of 'Banslochan'. They sell these goods in tin containers with the abels bearing their a foresaid trade mark which has acquired high reputation in the market. The appellants do no claim their trade mark was registered subject to the disclaimer that it shall give no right to the exclusive use of the device of a bamboo.
3. The Assistant Registrar observed that from visual aspect the device of bamboos forms the most prominent feature of the appellants trade mark .The first impression formed in purchasers mind acccording to him would in all probability be that of a jungle of bamboos. The words 'Bans ka Jungle' in Hindi script printed in small type under the said device according to the formed the real feature of a trade mark value of this mark. He was of the opinion that some at least of the consumers might de referring to the appellants goods by the name 'Bans Ka Jungle Banslochan'. The respondents started selling 'Banslochan' packed in tin containers with a label displaying the impugned trade mark consisting of the pictorial device of a bamboo grove more or less similar to that of the appellants with a mongram foot and covering a small part of the said device.
4. It has been argued by Mr. N. K. Anand. learned counsel for the respndent which argument was also adopted by the Assistant Registrar the 'Banslochan being an extract prepared from bamboos is merely descriptive of the goods and has no distinctive character.The customers in general would be aware the of this and would thereforee not attach much trade mark significance to the device of bamboos.They may either look to the proprietor's name or to some other words or feature by which the trade mark can be rememberd. On the other hand the display of words the display of mongram 'BBC' in the repondents trade mark said Mr.Anand is so prominent that it attracts the attention of the customers. This monogram it was climed distinguishes the respondents mark from that of the appellants. The respondent trade mark it was urged was not likely under the circumstances to be mistaken for the appellant's trade mark in the normal course of trade.
5. To me the arguments of Mr. Anand and the reasoning adopted by the Assistant Registrar do no appear to be convincing. The question involve is whether the device of a 'bamboo grove' or 'Bans ka Jungle' is descriptive or distinctive. If merely the former it has no trade mark value make value but if the latter it cannot de ignored. Merely because 'Banslochan' is an extract prepared from special type of bamboos does not mean that a peculiar design in which the bamboos may be displayed would also be descriptive. Bamboo per see may be descriptive. but not so the design in which it may be depicted. The argument that the 'bamboo grove' appearing in the appellant's trade mark is nothing but a photographic view of a cluster of bamboos without any originality or idea or design cannot be accepted. Bamboo can be displayed in a verity of manners. It may be one bamboo stick or nothing originality or idea or design be one bamboo stick or a bundle of bamboo object or depicted in any other way. The manner in with the bamboo can be aggregated or arranged can be distinctive. Bamboos shown growing in a wild grove certainly convey a distinguishing idea. 'Banslochan' may be said to be an extract prepared from bamboos but it is not prepared from bamboos but the idea of which is conveyed by the appellants trade mark and which must be said to be distinctive. The pictorial device of 'bamboo grove' or 'Bans Ka Jungle' in the appellant's trade mark thereforee cannot be brushed aside merely dy saying that it is descriptive of the goods sold under its banner. The device of the bamboo grove is capable of making an impression on the minds of the customers who as observed by the Assistant Registrar himself, are likely to order the appellant's goods by the distinctive name of 'Bans ka Jungle Banslochan'.
6. The trade mark of the respondent also gives and equal prominence to the pictorial device of a bamboo grove. The question thereforee arises whether the monogram 'BBC' prominently displayed at the foot of the said grove is capable of wiping out the impression of the bamboo grove itself which is conveved to the mind of the potential customer. The answer appears to me to gram 'BBC' in the respondents' trade mark does not obliterate the bamboo grove displayed prominently above it.
7. In order to determine whether the impugned mark is likely to deceive or cause confusion the two marks have not to be compared place side by side. The unwary customer is guided only by his general recollection of what he observes. Having seen the appellants' trade mark which admittedly gives him the impression of a bamboo grove he is likely to be led away by the more or less similarity of the bamboo grove in the respondent trade mark on account of his recollection of the general impression formed earlier into thinking that it is customer thereforee is likely to be deceived into thinking that the trade mark before him which may be of the respondent is the same as that of the appellants of which he is carrying just a general impression. This would cause the confusion which the Act aims to avoids.
8. Under Section 11 of the Act a mark which inter alias by its use would be likely to deceive or cause confusion cannot be registered as a trade mark. Under Section 12(1) of the Act no trade goods which is identical with or deceptively similar to a trade mark which is already registered in the name of different prop0rietor in respect of the same goods. Both sections 11 and 12(1) thereforee provide a bar to the registration of the respondents trade mark.
9. The above conclusion appears to me to be so obvious and unavoidable that it does not require looking into the many decided cased cited by Mr, Anoop Singh the learned counsel for the appellants to support it. But the facts in the case of Orange Grove Fruit Drinks Limited, (1962) R. P. C. 83 are so strikingly on all fours with the facts in the instant case that I cannot help but noticing it. In the Orange Grove case the for registration in respect of orange cordials as being distinctive. (Also see Harry Reynolds v. Laffaaty's Ltd (1958) R.P.C. 387 and the 'Pomril' case (1901) 16 R.P.C. 181
10. Mr. Anand contended that the device of a bamboo has been disclaimed by the appellants. The registration of their trade mark was specifically made subject to the disclaimer that it shall give no right to the exclusive use of the device of a bamboo. It was contended that under Section 28(2) of the Act the given under sub-section (1) was subject to the limitations to which the registration was subject the appellants thereforee it was urged could not raise objection to the said device being adopted by anyone else. The argument overlooks which give it distinctiveness it has come to be associated in the minds of the public and the trade through long user with the appellants goods thee disclaimer subject to which the appellant's mark was registered thereforee would not stand in their device of a 'bamboo would not Supreme Court in Registrar of Trade Marks v Ashok Chandra Rakhit Ltd., : 2SCR252 preserve intact any right which the proprietor may otherwise have under any other law herein relating to the mark or any part thereof.
(11) I have thereforee not been able to see any justification for dismissing the appellants application for justification. The impugned trade mark belonging to the respondent was registered without sufficient cause and has wrongly remained on the register. I thereforee the accept the appeal set aside the order of the Assistant Registrar of Trade Marks and allow the appellant's application of for rectification under Section 56(2) of the Act. In the result the entry in the register relating to the registered trade mark NO. 186774 shall be varied by deleting the device of bamboo grove appearing in that mark. The respondent shall also pay the appellant's costs of this appeal, Counsel fee Rs.200.
12. Appeal allowed.