Trade mark similarity turns on overall impression, and honest concurrent user fails where adoption follows knowledge of prior marks.

Trade mark similarity is assessed by the total commercial impression of the marks, not by a side-by-side comparison of isolated differences. A proposed device mark showing two birds on a twig, even with the words "Bul Bul," was found deceptively similar to earlier registered bird-on-twig marks because the overall visual resemblance remained likely to confuse purchasers of the same description of goods. The plea of honest concurrent user also failed where adoption was made with knowledge of the prior marks and genuine concurrent use of the picture mark was not established. Registration was therefore refused and the opposition succeeded.

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Issues: (i) Whether the appellants' proposed device mark of two birds on a twig with the words "Bul Bul" was deceptively similar to the respondent's registered bird-on-twig marks and likely to deceive or cause confusion under the trade mark law; (ii) Whether the appellants were entitled to registration on the basis of honest concurrent user.

Issue (i): Whether the appellants' proposed device mark of two birds on a twig with the words "Bul Bul" was deceptively similar to the respondent's registered bird-on-twig marks and likely to deceive or cause confusion under the trade mark law.

Analysis: The marks had to be compared as a whole and by their overall impression, not by placing them side by side and isolating differences. The respondent's registered marks included a bird sitting on a twig, and the appellants' proposed mark also consisted of birds on a twig with a close visual resemblance in the device. The addition of the words "Bul Bul" did not materially dispel the similarity in the overall impression likely to remain with the purchasing public. The goods were of the same description, and the evidence showed a real possibility that the appellants' goods could be mistaken for the respondent's goods.

Conclusion: The proposed mark was deceptively similar and likely to deceive or cause confusion, against the appellants.

Issue (ii): Whether the appellants were entitled to registration on the basis of honest concurrent user.

Analysis: Honest concurrent user was negatived because the appellants were aware of the respondent's similar registered marks and nevertheless continued to use the device mark. The material placed before the authorities did not establish genuine concurrent use of the picture mark on the goods from the relevant period. The use appeared to be with knowledge of the prior marks and not as an innocent concurrent adoption.

Conclusion: The appellants were not entitled to the benefit of honest concurrent user, against the appellants.

Final Conclusion: The refusal of registration was upheld and the appellants' challenge failed, leaving the respondent's opposition successful.

Ratio Decidendi: A trade mark must be assessed by its total commercial impression, and where a later mark closely resembles an earlier registered mark on the same description of goods, registration must be refused if confusion is likely; the plea of honest concurrent user fails where adoption is made with knowledge of the prior mark and without proof of genuine concurrent use.

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