Deceptive similarity in trade marks can bar registration even for different goods when marks are similar and trade-connected.

Trade mark protection extends to reputation in relation to the goods themselves, not merely the identity of the manufacturer, and wide use and advertising may show public association with the mark. Deceptive similarity must be assessed by comparing the marks as wholes from the standpoint of an average purchaser with imperfect recollection. Even where the goods are not of the same description, registration may still be refused if the marks are structurally and phonetically similar and the goods are trade-connected in the market. On that basis, confusion or deception was likely and refusal of registration was upheld.

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Issues: (i) whether the appellant's mark had acquired a reputation among the buying public and the respondent's proposed mark was likely to cause confusion or deception; (ii) whether, despite the goods not being of the same description, the similarity between the marks and the trade connection between the goods justified refusal of registration.

Issue (i): whether the appellant's mark had acquired a reputation among the buying public and the respondent's proposed mark was likely to cause confusion or deception.

Analysis: The reputation relevant to trade mark protection is the reputation of the mark in relation to the goods, not the identity of the manufacturer. On the material on record, the mark had been used on a large scale, advertised widely, and had in fact come to be associated by the buying public with the appellant's goods. The court also rejected the view that reputation was confined to tradespeople or that a public association with the manufacturer was necessary.

Conclusion: The appellant's mark had acquired a reputation among the buying public, and the respondent's proposed mark was capable of causing confusion or deception.

Issue (ii): whether, despite the goods not being of the same description, the similarity between the marks and the trade connection between the goods justified refusal of registration.

Analysis: The marks were to be compared as wholes from the standpoint of an average purchaser with imperfect recollection. The two marks were structurally and phonetically similar and conveyed the same idea. Even though the goods were different for the purposes of the specific statutory provision on same-description goods, there was evidence of a trade connection between glucose and biscuits, and such connection could create the likelihood of deception where the marks were similar. The presence of other marks on the register containing similar elements did not assist the respondent in the absence of proof of actual user in the market.

Conclusion: The similarity of the marks, coupled with the trade connection between the goods, made confusion or deception likely, so registration ought to have been refused.

Final Conclusion: The earlier order restoring refusal was set aside, and the decision of Desai, J. was restored, with costs awarded to the appellant.

Ratio Decidendi: In assessing deceptive similarity, the court must consider the marks as wholes from the standpoint of the average purchaser, and confusion may be found even where the goods are different if the marks are similar and the goods are trade-connected in the market.

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