Deceptive similarity in trade marks turns on overall impression, phonetic resemblance and likelihood of confusion, not microscopic comparison.

Deceptive similarity is assessed by the overall impression of the marks from the viewpoint of an ordinary purchaser with imperfect recollection, not by microscopic comparison. Applying that test, visual resemblance, common get-up, arrangement and phonetic similarity were sufficient to create a likelihood of deception or confusion. The defence of honest concurrent user requires bona fides; where adoption is shown to be not honest, and public interest in maintaining the purity of the register is engaged, the defence fails. An objection to affidavits and supporting material for alleged procedural non-compliance was rejected, as the material was properly filed and, in any event, the comparison of the marks independently supported the conclusion.

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Issues: (i) whether the respondents' label was deceptively similar to the appellants' registered trade marks and likely to cause deception or confusion; (ii) whether the respondents were entitled to protection on the ground of honest concurrent user; and (iii) whether the appellants' affidavits and supporting material could be excluded for alleged non-compliance with the Trade and Merchandise Marks Rules, 1959.

Issue (i): whether the respondents' label was deceptively similar to the appellants' registered trade marks and likely to cause deception or confusion.

Analysis: The governing test is overall similarity judged from the standpoint of a person of average intelligence and imperfect recollection, having regard to the broad and essential features of the marks and not by placing them side by side for microscopic comparison. Marks are remembered by their general impression, and both visual and phonetic resemblance may be material. Applying those principles, the resemblance in get-up, arrangement and essential features, together with the phonetic similarity between the rival names, was held sufficient to mislead an ordinary purchaser.

Conclusion: The respondents' label was deceptively similar to the appellants' marks and was likely to deceive or cause confusion.

Issue (ii): whether the respondents were entitled to protection on the ground of honest concurrent user.

Analysis: The defence of honest concurrent user requires bona fides. The respondents' conduct in seeking an amendment to bring their label closer to the appellants' mark, coupled with the evidence of actual confusion, negatived good faith. The material on record showed that the adoption was not honest and that the public interest in maintaining the purity of the register required refusal of the defence.

Conclusion: The respondents were not entitled to the benefit of honest concurrent user.

Issue (iii): whether the appellants' affidavits and supporting material could be excluded for alleged non-compliance with the Trade and Merchandise Marks Rules, 1959.

Analysis: The objection was rejected because the affidavits had been filed in proper proceedings, some were sworn before a legally empowered authority, and no objection had been taken before the Deputy Registrar. In any event, even without those affidavits, the conclusion on deceptive similarity remained supported by the other material and by the inherent comparison of the marks.

Conclusion: The affidavits and supporting material were not liable to be excluded on the objection raised.

Final Conclusion: The rectification application succeeded, the concurrent findings against the appellants were set aside, and the trade mark register was directed to be corrected in the appellants' favour.

Ratio Decidendi: In judging deceptive similarity, the marks must be compared as a whole from the viewpoint of an ordinary purchaser with imperfect recollection, and phonetic resemblance, overall get-up, and likelihood of confusion are decisive; a plea of honest concurrent user fails where the adoption is not bona fide.

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