TaxTMI 
TaxTMI 
1969 (4) TMI 111
X X X X Extracts X X X X
X X X X Extracts X X X X
....d having business activities inside and outside the State of Madras. On March 10, 1958 the appellant filed application no. 183961 for registration of a trade mark in class 34 in respect of " snuff manufactured in Madras." The respondents filed a notice of opposition. The main ground of opposition was that the proposed mark was deceptively similar to their registered trade marks. The respondents were the proprietors of the registered marks nos. 126808 and 146291. Trade mark no. 126808 consists of a label containing a device of a goddess Sri Ambal seated on a globe floating on water enclosed in a circular frame with the legend "Sri Ambal parimala snuff" at the top of the label, and the name and address "Sri Ambal & Co., Madras" at the bottom.....
X X X X Extracts X X X X
X X X X Extracts X X X X
....mportant part. Words always talk more than devices, because it is generally by the word part of a composite mark that orders will be given. Apart from that, the opponents have a registered mark consisting of the expression Sri Ambal. I have, therefore, to determine whether the expression Sri Andal, is decep- tively similar to Sri Ambal." He said : " the sound of "Ambal" does not so nearly resemble the sound of "Andal", in spite of certain letters being common to both the marks, as to be likely to cause confusion or deception among a substantial number of persons." The respondents filed an appeal in the Madras High Court. Jagadishan, J. observed "It is settled law that a trade mark comprehends not merely the picture design or symbol but a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....xpert knowledge of such matters and his decision should not be lightly disturbed. But both the courts have found that he was clearly wrong and held that there is a deceptive similarity between the two marks. In -an appeal under art. 136 of the Constitution the onus is upon the appellant to show that the concurrent finding of the courts below is erroneous. The appellant must satisfy the court that the conditions of s. 12 (I) have been satisfied. If those conditions are not satisfied his mark cannot be registered. Now the words "Sri Ambal" form part of trade mark no. 126808 and are the whole of trade mark no. 146291. There can be no doubt that the word "Ambal" is an essential feature of the trade marks. The common "Sri,, is the subsidiary par....
X X X X Extracts X X X X
X X X X Extracts X X X X
....th reference to the ear as well as the eye. There is a close affinity of sound between Ambal and Andal. In the case of Coca-Cola Co. of Canada v. Pepsi Cola Co. of Canada Ltd.( (1942) 59 R.P.C. 127.), it was found that cola was in common use in Canada for naming the beverages. The distinguishing feature of the mark Coca Cola was coca and not cola. For the same reason the distinguishing feature of the mark Pepsi Cola was Pepsi and not cola. It was not likely that any one would confuse the word Pepsi with coca. In the present case the word "Sri" may be regarded as in common use. The distinguishing feature of the respondent's mark is Ambal while that of the appellant's mark is Andal. The two words are deceptively similar in sound. The....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d "summit" were words in common use, each conveying a distinctly definite idea; that there was no possibility of any one being deceived by the two marks; and there was no ground, for refusing registration. Mr. Sen's argument loses sight of the realities of the case. The Hindus in the south of India may be well -aware that the words Ambal and Andal represent the names of two distinct goddesses. But the respondent's customers are not confined to Hindus alone. Many of their customers are Christians, Parsees, Muslims and persons of other religious denominations. Moreover, their business is not confined to south of India. The customers who are not Hindus or who do not belong to the south of India may not know the difference between the w....