A.N. Ray, J.
1. This is an appeal from the decision and order of the Deputy Registrar of Trade Marks, Calcutta, dated October 23, 1962. The appellant is the Singer Manufacturing Company. The decision of the Deputy Registrar of Trade Marks is that designation of goods in Application No. 170032 for registration of a trademark consisting of a label containing the word 'Sagar' in the form of Class 7 in respect of Sewing Machines and parts thereof be limited to 'sewing machines sold complete'.
2. On July 11, 1955, Attorneys on the respondents made an application for registration of the Trade Mark Sagar is Class 7 in respect of Sewing Machines as appearing at page 1 of the Paper Book in the name of Vidya Sagar Trading as Paul Brothers, whose trade or business is 83, Lower Chitpur Road, Calcutta-7 by whom the said mark is used and who claims to be the proprietor thereof. The application was filed on July 19, 1955. On October 14, 1955 the Registrar of Trade Marks, Bombay, wrote to the said applicant's Attorneys that they should file an affidavit from the applicant as to the acquired distinctiveness in respect of the word 'Sagar' which is surname as well as a personal name. On March 1, 1956 the affidavit was affirmed by Vidya Sagar along with exhibits Nos. 1 to 154. On February 19, 1957 the Singer Manufacturing Company delivered the grounds of opposition. On September 27, 1957 Vidya Sagar affirmed another affidavit stating the grounds tor the application. In that affidavit the grounds of opposition on behalf of the Singer Manufacturing Company were dealt with. On November 20, 1961 the Singer Manufacturing Company delivered further grounds of opposition. On 27th January, 1962 Paul Brothers filed another counterstatemen'.
3. Affidavit evidence was relied on by both parties at the hearing before the Deputy Registrar. The evidence in support of the application consisted of the affidavit of Vidya Sagar affirmed on August 17, 1959 with Exhibits A-1 to A-115, (Sic) B-1 to B-5 and C-1 to C-4 which are to be found at page 74 following of the Paper Book. The other affidavits in support of the application are to be found at page 82 following of the Paper Book. The affidavit evidence in support of the opposition consisted of the affidavit of Joseph Thompson and Exhibits A, B, C, D and E sworn on May 16, 1958 which are to be found at page 44 following and the other affidavits in support thereof are to be found at page 53 following of the Paper Book.
There is further affidavit of Joseph Thompson sworn on December 19, 1959 which is to be found at page 167 of the Paper Book.
4. The decision and order of the Deputy Registrar is impeached by counsel for the appellant on three grounds. First, that the word 'Sagar' is a proper name and as such it cannot be registered without evidence of distinctiveness and that there is no distinctiveness in the word 'Sagar' which is said by the appellant to be a proper name; secondly, that there is confusion between the name 'Sagar' and the name of the appellant 'Singer'; thirdly, that the order should not have been made because the respondents are guilty of inaccurate statements.
5. Under Section 9 of the Trade and Merchandise Marks Act, 1958 a trade mark shall pot be registered in Part A of the register unless it contains or consists of at least one of the essential particulars mentioned in sub-clauses thereof Sub-clause (d) is as follows:
'One or more words having no direct reference to the character or quality of the goods and not being according to its ordinary signification, a geographical name or a surname or a personal name or any common abbreviation thereof or the name of a sect, caste or tribe in India.'
Sub-clauses (a), (b), (c) and (e) of Section 9 are not material for the purposes of the present appeal. Under Sub-section (2) of Section 9 it is stated thata name, signature or word, other than such as fall within the descriptions in Clauses (a), (b), (c) and (d) of Sub-section (1) shall not be registrable in Part A of the register except upon evidence of its distinctiveness.' In Sub-section (3) of Section 9 it i,s stated that
'for the purposes of this Act, the expression 'distinctive' in relation to the goods in respect of which a trade mark is proposed to be registered, means adapted to distinguish goods with which the proprietor of the trade mark is or may be connected in the course of trade from goods in the case of which no such connection subsists either generally or, where the trade mark is proposed to be registered subject to limitations, in relation to use within the extent of the registration.'
In Sub-section (5) of Section 9 it is stated that
'in determining whether a trade marie is distinctive or is capable of distinguishing as aforesaid, the tribunal may have regard to the extent to which(a) trade mark is inherently distinctive or is inherently capable of distinguishing as aforesaid; and(b) by reason of the use of the trade mark or of any other circumstances, the trade mark is in fact so adapted to distinguish or is in fact capable of distinguishing as aforesaid.'
6. Counsel on behalf of the appellant contended that a word which is a surname according to its ordinary signification does not qualify for registration in Part A of the register. Under Section 9(1)(d) surnames or proper names may be registered if distinctiveness is sufficiently established. The considerations chiefly influencing the tribunal in such a case are, first, length, extent and nature of the user; secondly, rarity of the name; thirdly, the nature of the trade; fourthly, the custom of the trade as to the common use of surnames to distinguish goods. Counsel for the appellant relied on the Statement of Law in Kerlay on Trade Marks,Eighth Edition at page 118 which is based on the decision by the Registrar in, In re Swallow Raincoats Ltd.'s Application reported in (1947) 64 RPC 92. Two propositions are laid down in Swallow case. First, where the word 'propounded' for registration has no signification other than as a surname (words such as 'Dabner' and 'Crossingham' may be cited as examples), Registrar considers that he is prohibited from registering the mark in Part A of the register except upon proof of its distinctiveness, though he may register it in Part B of the register without such proof where he is satisfied that the surname is one that is very rare; secondly, where the word 'propounded' is found to occur very rarely as a surname and obviously has an overwhelmingly commoner and better-known meaning otherwise than as a surname (e.g., words such as 'Coup' or 'Cheer'), the Registrar would be prepared to regard the surname signification as a non-ordinary one, to recognise that the word falls within the terms of paragraph (d) of Section 9(1), and (as he may do in such a case without offending the provisions of paragraph (e)) to register the mark in Part A of the register without requiring any further evidennce of its distinctiveness; or if the word were a less rare surname (and yet not in any sense a common surname), and had an overwhelmingly commoner and better-known meaning otherwise than as a surname (e.g. words such as 'Jury' or 'Bugler'), the Registrar would, in the absence of evidence of distinctiveness, refuse registration in Part A, but would allow registration in Part B of the register.
7. Counsel for the appellant relied on the decision in re: H. S. Burford and Co. Ltd.'s Application, reported in (1919) 2 Ch. 28 and on the observations appearing at page 39 of the report that
'Although the name Burford could not be described as quite uncommon it was nevertheless not a common name and no single person of that name was engaged in manufacturing motor cars or any parts of motor cars. Counsel for the appellant also relied on the decision Teofani and Co. v. A. Teofani, reported in (1913) 2 Ch 545, and on the observations appearing at page 567 of the report that the surname in that case was registrable by reason of distinctiveness as also by reason of long user. Counsel for the appellant relied on the Burford 1919-2 Ch 28 and Teofani (1913) 2 Ch 545, cases in support of two propositions that rarity of name might become distinctive in the trade and that one of the ingredients of distinctiveness would be the length of user and counsel contended that in the present case the name 'Sagar' was common and there was no evidence of long user or of user to amount to distinctiveness.
8. Counsel for the appellant also relied on the decision in R. J. Lea Ltd.'s Application, reported in (1912) 2 Ch 32, and the decision of the Court of Appeal in the same case reported in In re Lea's Trade Mark, (1913) 1 Ch 446. In Lea's case, (1918) 1 Ch 446, it was found that the mere surname of an individual, although it may be adapted to distinguish the goods of all the persons taken collectively, who bear that surname from the goods of other persons bearing a different surname, was not adapted to distinguish the goods of a particular applicant, even though his surname was an un-common one, from those of other persons withinthe meaning of that expression in the Trade Marks Act, 1905 and was, therefore, not to be registered. On appeal it was held by the Court of Appeal consisting of Far well, L.J., Buckley, L.J. and Hamilton, L. J. that on the evidence in that case the word 'Eoardman's' was not adapred to distinguish the goods of the applicant from those of other dealers in tobacco and was, therefore, not registrable as a distinctive mark. Farewell, L. J., said
'It is plain to ray mind that the name of a company, individual or firm by itself is not, prima facie and without more, distinctive nor is a geographical name or (sic) and if there is nothing more I think it would be wrong for the Board of Trade or Court to allow such to be registered.'
Hamilton, L. J. said
'the Act says 'adapted to distinguish', the mere proof or admission that a mark does in fact distinguish does not ipso facto compel the Judge to deem that mark to be distinctive. It must be further 'adapted to distinguish' which brings within the purview of his discretion the wider field of the interest of strangers and of the public.'
9. The other decision on which counsel for the appellant relied is Popes Electric Lamp Co.'s ease reported in (1911) 2 Ch 382, and on the observations appearing at paees 386 and 387 of the report that in determining whether trade mark is so adapted to distinguish the goods of the proprietor of the trade mart or those of other persons the Tribunal may in the case of trade mark in actual use take into consideration the extent to which such user has (sic) such trade mark in fact distinetive for the goods with respect to which it is registered or proposed to be registered. Counsel for the appellant also relied on the decision in Yorkshire Copper Works Ltd.'s Application, reported in (1954) 71 RPC 150, on the observations of Simonds, L. C. appearing at pp. 153 and 154 where Lord Simonds expressed emphatic dissent from the proposition which was strenuously urged by counsel that distinctiveness was in fact conclusive at any rate if there was what he called 100 per cent distinctiveness.
10. Relying on these decisions counsel tor the appellant contended that in the present case the name was a proper name and it was a common name and there was no evidence of long user or of distinctivness.
11. It is necessary at this stage to notice that in the affidavit of Joseph Thompson sworn on May 16, 1958 the deponent in paragraph 11 stated as follows: I further submit that the mark 'SAGAR' is a surname. The mark applied for, therefore, offends against the provisions of Section 6(9 ?) of the Act. That is the only opposition taken by the Singer Manufacturing Co. to the name being either a proper name or a surname. It is true that the Assistant Commissioner by letter, dated October 14, 1955 wrote to the applicant's attorneys that the applicants were required to file an affidavit as to the acquired distinctiveness in respect of the word SAGAR which was a surname or personal name. The affidavit of Joseph Thompson was replied to by Vidyasagar by an affidavit affirmed on August 17, 1959 (Paper Book, p. 74) where in paragraph 5 the deponent said that the word 'Sagar' was known to every Indian as meaning 'Ocean' and theword 'Sagar' was very well known to the Hinduswho constitute the vast majority of Hindus in viewof its religious aspect as bathing in the Sagar is apious act. The deponent further said that theannual Ganga Sagar Mela is well known to themajority of the Hindus and in view of the publicity of the Mela to other communities and as suchthere is the least possibility of conflict or confusionof the word Sagar with the word Singer in theminds of the Indian public. The deponent furthersaid that names like Vidya Sagar, Prem Sagar,Gyan Sagar, Daya Sagar, Dharam Sagar, SagarChand are quite well known in India and Singeron the contrary was either a common noun or onewho sings or a foreign name.
12. The Deputy Registrar in dealing with the rival contentions on the word 'Sagar' came to the conclusion that, the word 'Sagar' is primarily an ordinary word and in tho vernacular languages meaning Sea and Ocean though sometimes used as surname and personal name and that from the evidence filed the word 'Sagar had acquired distinctiveness as on the date of the application. Counsel for the respondent contended that in the Swallow Raincoats case it was found as a fact and on evidence that there were 28 persons with the name of Swallow in the London Telephone Directory and that those 28 entries obviously did not represent the totality of persons named Shallow in the London area or, even less so, of persons so named in the country as a whole. In the Swallow Raincoats case no proof of distinctiveness was furnished. The Swallow, it was said, might qualify a bird or the act of passing food through the mouth and throat or it might be a common surname and in the opinion of the Registrar all those ordinary significations of the word propounded did not qualify a word not being according to its ordinary significations a surname. Counsel for the respondent in my view rightly contended that there was no evidence in the present cast: and no finding that there were persons holding the name of Sagar either as a surname or as a proper name. Counsel for the respondent rightly contended that the word 'Sugar' might be park of a name and, therefore, it was not a common name or a surname or a proper name. Part of a name, it is rightly said by counsel for the respondents is not prohibited by Section 9 of the Trade Marks Act, 1958.
13. It was contended by counsel for the respondent that the affidavit evidence of Joseph Thompson sworn on May 16, 1958 (page 44 of the Paper Book) in paragraph 7, amounted to a submission that the mark 'Sagar' was a surname and a submission did not amount to any avermeut or allegation of fact. Counsel for the respondent relied on the affidavit of Vidya Sagar affirmed on March 1, 1956 (page 4 of the Paper Book) and another affidavit of Vidya Sagar affirmed on Septcmber 27, 1957 (page 10 of the Paper Book) and another affidavit of Vidya Sagar affirmed on August 17, 1959 (page 74 of the Paper Book). In paragraph 3 of the affidavit of Vidya Sagar affirmed on August 17, 1959 he said that the reason for selection of the name 'Sagar' was that it was a part of his name and there was no challenge to that portion of the affidavit. In the notice of opposition at page 6 of the Paper Book it was said that 'Sagar' was a proper name or surname. In this contextthe Deputy Registrar said that although no plea had been taken in the Notice of Opposition at the hearing an objection was raised to the registrability of the mark on the ground that the word 'Sagar' which was also a surname as well as a personal name had not acquired distinctiveness. Reference was made to paragraph 4 of the affidavit of Joseph Thompson sworn on May 16, 1958. I have already referred to that portion of the affidavit which is stated as a submission. The Deputy Registrar at page 28 of the Paper Rook came to the conclusion that the word 'Sagar' was an ordinary word in most of the Indian languages and means 'Ocean or Sea'. To some extent it is used as a part of a personal name and a surname also. On the evidence counsel for the respondent rightly contended first, that if Sagar was part of a name it was not within the mischief of Section 9 of the Act, secondly, that there was no direct challenge to the use of the word 'Sagar' as a personal name or surname and the statement was based on submission and it was not a statement of fact which had any evidentiary value, thirdly, that if it were part of a name there was no requirement of distinctiveness in the present case, and fourthly, that there was sufficient evidence of disdnctiveness. It appears to me that the finding of the Deputy Registrar that the word 'Sagar' is primarily aud ordinarily a well-known Indian word meaning ocean or sea is an acceptable conclusion on the evidence in the present case. The word 'Sagar' connotes an impression of sea. The test formulated by counsel fo-the respondent is whether the utterance of the (sic) 'Sagar' would associate it with the name of a person or with any other signification. I am of opinion that there is no evidence that the word 'Sagar' is a surname or a proper name. The observation of the Deputy Registrar that 'Sagar' may be a part of a personal name or it may be a surname by itself docs not assist the appellant in the facts of the present case.
14. The Deputy Registrar came to the conclusion that the sale of over 600 sewing machines in three years next preceding the date of the application coupled with the publicity made by advertisement in the background of high price of sewing machine and the fact that it is bought once or at the most twice in a lifetime by householder and a little offencer by tailors and that the word 'Sagar' is primarily an ordinary word in the Indian vernacular languages meaning sea or ocean was sufficient for the word Sagar to have acquired distinctiveness. Counsel for the appellants relied on the statement of law in Halsbury's Laws of England, 3rd Edition, Volume 38 at pages 523 and 524, paragraph 868 to show what length of user had been claimed in regard to registration of surnames. In the Burford case (1919) 2 Ch 28, three years sale was held to be sufficient. There are on the contrary cases like In re Reddaway (F) and Co. Ltd., (1921) 38 RPC 83, where the length of user was spread over 40 years. In Teofani's case, (1913) 2 Ch 545, there was user for 13 (30?) years. In Cadbury's case, (1915) 32 RPC 9, there was user for 60 years. In that context counsel for the appellants contended that the user in the present case was not long enough. It can be stated here that the Deputy Registrar case to a figure of sale of 600 machines for three years prior to the dateof the application. Counsel for the respondent contended that the figure of 600 spread over approximately for three years was not an insignificant quantity when the appellants sold fifteen to twenty thousand after a period of 65 years. It would appear at p. 48 of the Paper Book that the appellants' sale in the year 1944 amounted to about 15,000. It is true that there have been sales of 50,000 and there arc also sales between 30,000 and 40,000 but that again is a question of appreciation of the entire evidence by the Deputy Registrar, and I am of opinion that his conclusion is correct in the facts and circumstances of the present case.
15. It was contended on behalf of the appellants that under Section 11(a) of the Trade and Merchandise Marks Act, 1958 a mark which would be likely to deceive or cause confusion shall not he registered as a trade mark and that in the present case the words 'Singer or Sagar' had phonetic or visual similarity. Reliance was placed by counsel for the appellants on the decision in Aristoc Ltd. v. Rysta Ltd., reported in 1945 AC 68. It has been held since the decision in Eno v. Dunn, reported in (1890) 15 AC 252, corresponding to 7 RPC 311 that the onus of proof is on the applicant to prove that there is no reasonable probability of deception. In Avistoc case it was found by Viscount Maugham that the word 'Rysta' so nearly resembled in sound the word 'Avistoc' that if it was admitted to the Register and used in respect of stockings it would be likely to deceive or cause confusion. In Aristoc case Lord Wright said that there was a general risk of confusion which in the public interest should not be authorised and the question was not merely one of competing marks and the right inter se of their respective proprietors. Counsel for the appellants also relied on De Cordova v. Vick Chemical Co. (1951) 68 RPC 103 where the decision was on (he confusion between the words 'Vepo Rub' and the words 'Vepour Rub'. Lord Radeliffe in the Cordova rase said that
'a photographic recollection was not possible and the likelihood of confusion or deception is not proved by placing the two marks side by side and demonstrating how small is the chance of error in any customer who places his order for goods with both the marks clearly before him, tor orders are not placed, or are often not placed, under such conditions. It is more useful to observe that in most persons the eye is not an accurate recorder of visual detail, and that marks are remembered rather by general impressions or by some significant detail than by any photographic recollection of the whole.'
16. In Halsbury's Laws of England, Third Edition, Vol. 38, page 588, paragraph 983 following it is stated that the rules for comparison are what Parker, J., said in He Piauotist Co.'s Application. (1906) 23 RPC 774:
'You must take the two words and judge of 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 is likely to buy those goods. In fact, you must consider all the surrounding circumstances, and you must further consider what is likely to happen if each of those trade marks isused in a normal way as the trade mark for the goods of the respective owners of the marks.'
17. In the recent decision of the Supreme Court in the case of Amritdhara Pharmacy v. Satya Deo Gupta, reported in : 2SCR484 , the words 'Amritdhara' and 'Lakshmandhara' came up for consideration as to whether they were likely to cause confusion. It was said that the question had to be approached from the point of view of a man of average intelligence and imperfect recollection and to such a man the overall structural and phonetic similarity of the two names 'Amritdhara' and 'Lakshmandhara' was likely to deceive or cause confusion. The High Court in that case came to the conclusion that no Indian would mistake one for the other. The Supreme Court said that a purchaser of average intelligence would go more by the overall structural and phonetic similarity and the nature of the medicine he had previously purchased, or had been told about or about which he had otherwise learnt and which he wanted to purchase. It was also said in the 'Amritdhara' case that the question of confusion or deception was one which had to be determined as a ease of first impression irrespective of earlier decisions. Both counsel for the appellant and the respondent relied on the decision in 'Amritdhara' case as laying down the rules for guidance.
18. In the present case the Deputy Registrar came to the conclusion that there was no evidence from the opponents, namely, the appellants, as to the manner in which the sewing machines were bought, sold antl purchased, whereas the applicants, namely, the respondents, had filed evidence as to the manner in which sewing machines were bought and sold. It is found that the purchasers of the sewing machines are not ignorant or illiterate persons. They are usually skilled and observant persons and the class of purchasers consists of tailors, shoemakers, factories and educated ladies who like to do their own tuiloring. It js also iound that sewing machines arc purchased with deliberation by a knowing class of persons who look to their purchase as a long living investment for long service. It is further iound that sewing machines are not purchased by placing orders over the phone and that purchasers of sewing machines go to shops dealing therein to make their purchase where they see and try themselves the machines they intend to buy. There is no evidence adduced by the appellants to the contrary as to the manner in which sewing machines are bought. In that light of evidence, the Deputy Registrar found as a fact that it was established that the purchasers of sewing machines go to shops dealing therein, see and try the machines and make their purchases of sewing machines and that sewing machines are generally not ordered over the phone. As to comparison of the marks, the Deputy Registrar said,
'Taking in view the fact that the goods bearing the mark are sewing machines which arc costly articles, purchased once or at the most twice in a lifetime by householders and a little oftener by the tailors, and which are usually bought by prospective purchasers by going to a shop dealing in such machines and there seeing and trying the machines, I have no hesitation in coming to the conclusion that the word 'Sagar' is not deceptivelysimilar to the word 'Singer' and consequently, the applicants' mark is not deceptively similar to the opponents' aforesaid registered trade marks.'
In my opinion this conclusion is sound and correct in the facts and circumstances of this case.
19. On behalf of the applicants namely, the respondents, evidence is adduced by tailors as well as shop owners and members of the public. Some of the affidavits on behalf of the appellants are filled by shop owners, and some of them say that in their opinion the public can be misled to believe that 'Sagar' and 'Singer' are the same products. One of the deponents, R.P. Ohri, in his affidavit art page 61 of the Paper Book said that if he were to see the machine in the market, he was sure to be misled by the trade mark 'Sagar' that it might be a production of the Singer Manufacturing Company. Another deponent, R.C. Gupta, in his affidavit at page 58 of the Paper Book said that he had never seen or heard of sewing machines bearing the applicants' mark which had been shown to him and if he were to see sewing machines bearing the said trade mark, he would presume that the Trade Mark 'Singer' had been initated.
20. Counsel for the respondent characterized some of the affidavits used on behalf of the appellants as having been made by persons connected with 'Singer' and those were not the type of people to be considered and counsel characterized the affidavits of the deponents behalf of the appellants as mendacious statements. In my opinion, the characterization is justified in the facts and circumstances of this case.
21. In determining confusion or deception, the rarity of purchase, the price of the article, the particular class of clientele and the manner in which the trade is carried on are all different aspects which enter the field for ascertaining the likelihood of confusion or deception. There is no affidavit from any person who actually sells 'Singer' machines that there is any confusion. Counsel for the respondent, in my view, rightly contended that 'Singer' machines had been on the market for over half a century and whether a man who would spend that amount would be so minded as to have something which is like a 'Singer' machine and not a 'Singer' machine has to be judged by testing the nature of the article, the nature of customers, the surrounding circumstances, the price to be paid and the market at which such articles would be purchased by such persons. It would be wrong to apply any of these tests in an isolated manner. The surrounding circumstances, as was said by the Supreme Court in 'Amritdhara' case, : 2SCR484 . are the factors to be considered.
22. It has been said that such departmental decisions of the Deputy Registrar are also exercise of discretion on questions of fact as well as application of principles of law to such tacts. Counsel for the appellant contended that the entire decision was open and if there was anything wrong, it would be interfered with. There is no dispute with that proposition. On the other hand, it is said that a decision on a question whether a mark so nearly resembles another as to likely to deceive or cause confusion is not an exercise of discretion by a tribunal but a finding of fact (See Kerlay'sLaw of Trade Marks, 8th Edition, p. 404). The authority for that proposition is Rysta, Ltd.'s Application (1943) 60 RPC 87 at p. 107. The Master of the Rolls Mackinnon, L. J., and Luxmoore, L. J., constituting the Court of Appeal heard the decision from Farwell, J. in 'Rysta' case. The Master of the Rolls compared the mark 'Rysta' with the mark 'Aristoc' and said that the Assistant Comptroller after a most careful and exhaustive examination and consideration answered the question in favour of the Appellants and Farweli, J. although not sure that he would have come to the same conclusion, did not feel justified in reversing the decision on that ground. In that context, the Master of the Rolls said that the decision on the question was not an exercise of discretion, but a finding of fact and nevertheless, it was a finding by an official with great and specialised experience and must not be lightly overruled. There was some argument as to whether the decision of the Deputy Registrar on the two questions of registration of the name of 'Sagar' and of confusion between the marks of 'Sagar' and 'Singer' was an improper exercise of discretion. The decision of the Deputy Registrar was impeached by counsel for the appellant on the grounds discussed above and on the question of discretion it was contended that the Deputy Registrar did not base his decision on a proper appreciation of the element of distinctiveness required in regard to the registration of proper names or surnames. I have already indicated that there is no evidence that the word 'Sagar' is a surname. If ft is part of a name as was suggested or. as might be said, there is nothing in the statute to prevent registration of part of a name. Further, the dominant signification of such a word, which may be surname or part of a name, is in ordinary meaning something which is not a proper name, as for example, the word 'Sagar' meaning 'sea' or 'ocean'. Counsel for the respondent rightly suggested that if a word were part of a person's name it would not amount to a proper name, far less a surname. As regards the discretion of the Deputy Registrar or of persons dealing with such matters in the departmental stage it has been held by the House of Lords that the Court is reluctant to interfere unless the Registrar is clearly wrong. In the case of Banham (G) and Co. Ltd. v. Reddaway (F) and Co. Ltd. 1927 AC 406, Viscount Dunedin said,
'Now, it is true that an appeal lies from the decision of the Registrar, but in my opinion, unless he has gone clearly wrong, his decision ought not to be interfered with. The reason for that is that it seems to me that to settle whether a trade mark is distinctive or not and that is the criterion laid down by the statute is a practical question, and a question that can only be settled by considering the whole of the circumstances of the case. I look upon the word distinctive in the Act not as a scientific definition which may be explained and commented on by Judges, but rather as the indication of a practical standard to which the Registrar is bound to conform.'
In the case of (1890) 15 A. 6. 252, Halsbury, L. C. said that though no absolute right to the registration of a trade mark was given to an applicant for registration, the meaning and intent of the statute itself was that, unless for some of the reasons contemplated by the statute there was anobjection to the registration, the trade mark ought to be registered. In the present case the decision of the Deputy Registrar appears to me to be well-considered and well-reasoned. The views expressed by the Deputy Registrar and the conclusions arrived at by him are, in my opinion, sound and correct, and he has applied the principles of law correctly to the facts and circumstances of this case. In my opinion, the Deputy Registrar has exercised his discretion in a judicious and proper manner.
23. It was contended by counsel for the appellant that the Deputy Registrar should have given his decision against the respondents because the respondents were guilty of false declarations. First, it was contended that in the affidavit affirmed on March 1, 1956 Vidya Sugar said that he was the proprietor of Paul Brothers, i.e., the company was a proprietary concern and that the mark 'Sagar' had been continuously used by his company since the year 1952 whereas in the deed of partnership, dated April 15, 1955, which is to be found at page 173 of the Paper Book, it will appear that only Jamunaram and his son Subhas Chand had been carrying on business in partnership since the year 1952 under the name and style of Jagdish Sewing Machine Company at Delhi. It was, therefore, said on behalf of the appellant that this was a false declaration which would disentitle the respondents to an order for registration. In the second place it was contended that Vidya Sagar in his affidavit affirmed on September 27, 1957, which is to be found at page 10 of the Paper Book, repeated that he was manufacturing and selling machines since the year 1952 and that the statement was not supported by documents, but was contradicted by the deed of partnership as well as the statement attached to the affidavit affirmed on March 1, 1956. In the third place it was contended that in the affidavit of Vidya Sagar affirmed on 17 August, 1959 which is to be found at page 74 of the Paper Book he said that in the year 1953/54 there were 37 sales, in the year 1954/55 there were 891 sales and in the year 1955/56 there were 722 sales whereas it would appear from the statement of sales attached to the affidavit affirmed on March 1, 1956 that there was no sale in the years 1933 to 1954 and that in the year 1954/55 there were 416 sales and in the year 1955/56 there were 123 sales. In the fourth place it was contended that it would appear from several invoices relied on by the respondents appearing at pages 91, 93, 96, 102, 109, 111, 122, 127, 129, 130 to 147, etc., of the Paper Book that the number of machines sold from August 5, 1954 to June 9, 1955 was only 30. In the fifth place it is contended that the Deputy Registrar found that there were 610 sales and, therefore, the finding is wrong and the respondents are guilty of false declarations. Counsel for the appellants relied on the decision in In re Arthur Fairest Ltd,'s Application to Register a trade mark reported in (1951) 68 RPC 197 and on the observation appearing at page 206 that the filling of declarations which are on their face plainly false is a sufficient reason for regarding the taint of impropriety to attach to the whole of the evidence. In Arthur Fairest Ltd. case (1951) 68 RPC 197, the question arose whether Arthur Fairest Ltd. applied to register a mark consisting of their name, in common script lettering. with certain devices above the centre of name andwhether proper evidence of distinctiveness was not adduced. The application was opposed by Arthur Fairest Ltd. on the ground that the whole mark was at the date of application distinctive of himself; that the name Arthur Fairest Ltd. was registrable without proof of distinctiveness; and that Arthur Fairest Ltd. had disentitled themselves from registration by persisting in representing that a similar mark, in use by them, was registered. Under Section 11 of the English Trade Marks Act any registration which was likely to deceive or cause confusion would be disentitled to protection. Some evidence was given and there were certain declarations of Arthur Fairest himself. On the evidence it was held that the declarations were inaccurate and, therefore, tainted.
24. In the present case on the tacts it appears that the statement in paragraph 12 of the Affidavit of Vidya Sagar affirmed on August 17, 1959 at page 74 of the Paper Book is not correctly printed. The figure of sales for the year 1954/55 will appear in the original document as 416. As for sales during 1955/56 the Deputy Registrar has taken into consideration the figure 722 and divided it into four pars and has taken one-fourth of that into consideration for the relevant period. On that basis the Deputy Registrar came to a figure of 600. Counsel for the respondents rightly contended that all these were pure questions of fact. He is also right in his contention that none of these matters was agitated before the Deputy Registrar and there was no objection taken on behalf of the appellants on any of the grounds pleaded in appeal. There is no mention of any oi these points in the grounds of appeal. If these questions of facts had been raised before the Deputy Registrar, counsel for the respondent in my view rightly contended that in the first place the respondent would have answered that and secondly the respondents would have led such evidence as was necessary to answer the criticism made here on appeal. Further, there is no decision of the Deputy Registrar on these points and it would in my view be improper to impeach the decision of the Deputy Registrar on the ground that his decision is influenced by wrong declaration when this very point of wrong declaration was not agitated before the Deputy Registrar. It is in my view shee injustice to cavil at a decision of the Deputy Registrar on grounds which were never uttered far less discussed. To allow such a point to be raised in my opinion violates the principles of justice and fundamentals of fair play.
25. Counsel for the appellants contended that the Deputy Registrar on June 29, 1961 wrongly granted amendments substituting the name of the applicant Vidya Sagar and introducing in his stead names of those persons including that of the original applicant Vidya Sagar. The amendment is criticised on the ground that there was long delay. It is not said as to whether any prejudice was caused thereby. No such argument was advanced. It was said that evidence had been closed. No further evidence was offered nor do I find that there was any request for further evidence. I am unable to find that such an amendment is any wrong exercise of the powers conferred upon the Deputy Registrar.
26. Counsel for the appellants wanted to invite my attention to the machine. It was strenuouslyobjected to by counsel tor the respondents on the ground that the machine had not been allowed to be inspected by the Deputy Registrar. There is a finding to that effect by the Deputy Registrar that the machine was not produced before him and he has in my opinion correctly drawn an adverse inference. Counsel for the appellants next wanted to invite my attention to the photographs of the machines. It has been held by the House of Lords that any examination or scrutiny of two pictures side by side is incorrect in law and unsound in principle for the obvious reason that unwary purchasers are not expected to carry in their mind or before their eves any photographic memory or recollection of the things and, therefore, the examination of the pictures of the two machines will in my opinion be an entirely wrong and incorrect approach to find out that there is any cause or confusion or deception.
27. I am, therefore, of opinion that all thecontentions urged by the appellants fail. Theappeal is dismissed with costs. Certified for twocounsel.