Pharmaceutical trade mark confusion: strong phonetic similarity between "BICILLIN" and "BIOCILIN" barred registration.

In pharmaceutical trade marks, deceptive phonetic similarity is assessed with e strictness because confusion may affect doctors, chemists, and consumers. The court found "BICILLIN" and "BIOCILIN" strongly similar in sound and likely to be confused when spoken with different accents or read hurriedly. It held that objections under the provisions against deceptively similar and confusing marks were made out, while the argument based on section 9 did not assist the respondent. The appellant's mark was also noted as having acquired trade reputation, and the competing registration was rejected because the mark was likely to deceive or cause confusion.

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Issues: Whether the mark "BICILLIN" was deceptively similar to "BIOCILIN" and, on that basis, was liable to be refused registration under the provisions governing deceptively similar and confusing trade marks.

Analysis: The competing marks were considered in the context of medicinal products, where confusion may have serious consequences and the test of deceptive similarity is applied with particular strictness. The Court found strong phonetic resemblance between "BIOCILIN" and "BICILLIN" and held that, when spoken with different accents or read hurriedly, the marks were likely to be confused by doctors, chemists, and the purchasing public. The Court further held that the arguments based on section 9 of the Act did not assist the respondent, while the prohibitions in section 11(a) and section 12(1) were attracted because the mark was likely to deceive or cause confusion and was deceptively similar to the appellant's mark. The Court also noted that the appellant's mark had acquired reputation in trade.

Conclusion: The mark "BICILLIN" was held to be deceptively similar to "BIOCILIN" and not registrable, and the objection to registration succeeded in favour of the appellant.

Final Conclusion: The impugned registration was set aside and the application for registration of the competing pharmaceutical trade mark was rejected on the ground of deceptive phonetic similarity and likelihood of confusion.

Ratio Decidendi: In relation to medicinal products, a trade mark that is phonetically deceptive and likely to confuse ordinary purchasers, doctors, or chemists is barred from registration under the provisions prohibiting confusing and deceptively similar marks.

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