N.S. Ramaswami, J.
1. This appeal is against the order of the Assistant Registrar of Trade Marks, Madras, registering the trade mark 'Efficon' in Part A of the Register in respect of certain stationery articles such as copying machine, carbon paper, copying ink, copying paper, etc., included in class 16. The opponents, who are the appellant before me is, Ethicon Inc. of U.S.A. who manufacture certain surgical goods such as'Sterilising Fluid and Sutures(Catgut)' under the registered trade mark 'Thicon,'. The appellants opposed the registration of the trade mark 'Efficon' applied for by the respondents before me, on several grounds. The opposition has been over Rule d by the Assistant Registrar and registration ordered. Now, hi this appeal, the opponents (appellants press their opposition only under Section 11(a) of the Trade and Merchandise Marks Act, XLIII of 1958. It is their case that the registration of the trade mark 'Efficon' would lead to deception and confusion.
2. Regarding this aspect, the Assistant Registrar has pointed out that the goods of the opponents have a limited market in that, they being surgical goods, are marketed only to a limited class of purchasers, that such purchasers would well be aware of the fact that the goods are manufactured by ETHICON Inc. of the U.S.A., and marketed by their licensees in India, viz., M/s. Johnson and Johnson Limited, and that,such class of purchasers would, in no way be confused or deceived if the stationery articles manufactured by the respondents herein are also in the market. It is also pointed out that the goods for which the respondents have asked for registration of the trade mark 'Efficon' are of an entirely diflbrent class from those for which the appellant's trade mark relates, ana that, therefore, there is no chance of any deception or confusion.
3. However, Mr. M. Srirnvasan, learned Counsel for the appellants, contends that in spite of the fact that the goods manufactured and marketed by the appellants are entirely of a different class from those for which the respondents seek registration of the mark 'EFFICON', still, there is the chance of the purchaser of the respondents' goods hcing deceived or confused to think that those goods have some trade connection with the appellants. It is pointed out that the appellants'trade mark 'THIGON' has a wide reputation, that its goods have a wide market in ladia, and that, therefore, allowing the respondents, the use of the trade mark 'EFFICON', which is deceptively simliar to the registered trade mark of the appellant would undoubtedly cause confusion.
4. On a careful consideration, I am of the view that the opposition of the appellant under Section 11(a) of the Act is not sustainable.
5. The earliest case which can be usefully referred to in this connection is T.B. & Sons v. Prayag Narain . That was a case when the law of Trade Mark had not beer, codified in India. The law then applicable to this country was the same as that in England. In that case, the owner of the trade mark called Elephant Mark, in respect of manufacturing and marketing of cigarettes and stroking tobacco sued another, who used the same mark, viz., Elephant Mark, in respect of chewing tobacco. In spite of the feet that what was used by the opposite party was not merely a mark similar or deceptively similar to that of the aggrieved party, but it was one and the same mark, and the further fact that the goods of the two parties are not totally dissocia ted from one another, the Privy Council held that the person who was using the mark for chewing tobacco cannot be prevented from doing so on the ground of any deception or confusion. At page 87-88, their Lordships of the Privy Council observed:
There can obviously be no monopoly in the use of the trade maik. A manufacturer of cigarettes under an undoubted trade mark such as an animal, or any other device cannot legally object to the use of the identical mark of say, hats, or soap, for the simple reason that purchasers of any of the latter kinds of goods could not reasonably suppose, even if they were well acquainted with the mark as used on cigarettes, that its use on hats or soap denoted that these goods were manufactured see Somerville v. Sahembri (1887) 12 A.C. 453.
6. This case has been followed by the Calcutta High Court in Rustom Alt v. Bata Shoe Co. : AIR1957Cal120 That was a c&se; where the registered trade mark 'bata' of the Bata Shoe Company was sought to be used by another person for lungies. On, the principles laid down by the Privy Council, the Calcutta High Court Held that the Bata Shoe Company cannot be heard to say that by the use of the trade mark 'bata' in respect of lungies, there is likelihood of any deception or confusion,
7. The Delhi High Court has followed the above Privy Council decision in Nestle's Products v. Milkmade Corporation (1887) 12 A.C. 453. That was a case where the appellants before the High Court were the registered owners of the trade mark 'Milkmaid' in respect of condensed milk. The respondent before the High Court used the Trade mark 'Milkmade' ir respect of biscuits and toffees. The Delhi Hifh Court said that the Nestle's Products Limited have no cause of action as against the respondent, who used the trade mark 'Milkmade' in respect of biscuits and toffees.
8. Mr. Srinivasan very much relies on the decision of the Bombay High Court in Sunder Perntanand v. Caltex (India) Ltd. A.I.R. 1969 Bom. 2. That was a case where the appellants before the Bombay High Court wanted registration of the trade mark 'caltex' for watches and certain other goods. The respondent there was Caltex(India) Ltd., the reputed company, which deals in petrol and petroleum products throughout India. In spite of the fact that the goods for which the appellants therein wanted the trade mark 'caltex' to be registered had nothing to do with petrol, or petroleum products, which are goods of the respondent before that High Court, it was held by the Division Bench that registration of the trade mark should be refused, for the appellant.
9. But, that case is clearly distinguishable on facts. There, the High Court has, as a matter of fact, found that the appellants had chosen the trade mark 'caltex' for registration in order to deceive the public. Further, as pointed out by the Bombay High Court, petrol and petroleum products of the respondent are used by persons all over India in cities and in villages in different walks of life, rich or poorjiterate or illiterate. The potential market for the watches and other goods manufactured by the appellants before the Bombay High Court was also similar to that of the existing market of the respondent in the sense th at the goods of both parties are not special goods. They are goods which would bs purchased by the common man. It was under such circumstances the Bombay High Court held that in spite of the two sets of goods being of an undoubtedly different class, there is likelihood of deception or confusion. The Bombay High Court has recognised the fact that the que stion of deception or confusion has to be decided on the facts of each case. At pages?5 and?6, it has been observed iby the Bombay High Court, thus:
One must never forget that what Section 11(a) requires to be decided, is whether the mark sought to be registered is likely to deceive or cause confusion. That likelihood must vary on the facts of each case. Human conduct is varied and complex. The importance of a particular fact or facts may vary in the perspective of the totality of the facts of each case. The importance of a particular fact may increase or diminish when considered in combination with different sets of facts. What has to be decided in a case is whether on ike totality of the facts of that case, it is likely that there would be deception or confusion. It would therefore, be totally misleading to rely only on some individual fact or facts from a decided case and put emphasis on them without taking into account other facts in combination with which that particular fact was looked upon as yielding any principles. All factors which are likely to create or allay deception or confusion must be considered in combination. Broadly speaking, factors creating confusion would be for example, the nature of the mark itself, the class of customers, the extent of the reputation, the trade channels the existence of any connection in the course of trade, and several others. Of course, it need not be stated that it would not be that all such factors would exist in each and every case.
10. I have already indicated several of the distinguishing features in the case before the Bombay High Court, which influenced the Court in coming to the conclusion that there is likelihood of deception or confusion, in spite of the fact that the goods were totally different from one another. One additional factor which may also be noticed is that the petroleum products of Caltex India Limited, are advertised throughout India very widely, the company spending very huge amounts for advertising alone. Their sales in a year run into several crores of rupees. Therefore, that case cannot he equated with the case now under consideration. The goods of the appellants can have possibly only a limited market and limited class of purchasers, who are not likely to be deceived or confused, by the appearance of the stationery goods of the respondents under the trade mark 'EFFICON'. It is also to be noticed that the respondents are not seeking to use the same trade mark as that of the appellants, though phonetically there might be good deal of similarity between one mark and the other. 'EFFICON', which is sought to be registered by the respondents is undoubtedly uninvented word as 'ETHICON' itself is.
11. Under these circumstances, 1 agree with the conclusion of the Assistant Registrar that there is no likelihood of deception or confusion in registering the trade mark 'EFFICON' for the stationery goods of the respondent. The appeal fails and the same is accordingly dismissed.
12. I record my appreciation of ths assistance rendered by V. Natarajan, amicus curiae for the respondent. There will be no order as to costs.