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1953 (5) TMI 13 - SC - Indian LawsWhether the judgment of Mr. Justice Shah was subject to appeal under clause 15 of the Letters Patent of the Bombay High Court? Whether Mr. Justice Shah was right in interfering with the discretion exercised by the Registrar in refusing registration of the appellants’ mark? Held that:- So far as the present case is concerned the goods sold under the respondents’ trade mark are well-known and are commonly asked for as II Eagley " or " Eagle ", and the particular feature of the trade mark of the respondents by which the goods are identified and which is associated in the mind of the purchaser is the representation of an Eagle appearing in the trade mark. If the trade mark conveys the idea of an Eagle and if an unwary purchaser is likely to accept the goods of the appellants as answering the requisition for Eagle goods, then undoubtedly the appellants’ trade mark is one which would be likely to deceive or cause confusion. It is quite clear that the onus in a passing off action rests on the plaintiff to prove whether there is likelihood of the defendant’s goods being passed off as the goods of the plaintiff. It was not denied that the general get up of the appellants’ trade mark is different from the general get up of the respondents’ trade mark. That being so, it was held by the Madras High Court in the passing off action that on the meager material placed on record by the plaintiffs they had failed to prove that the defendants’ goods could be passed off as the goods of the plaintiffs. The considerations relevant in a passing off action are somewhat different than they are on an application made for registration of a mark under the Trade Marks Act and that being so the decision of the Madras High Court referred to above could not be considered as relevant on the questions that the Registrar had to decide under the provisions of the Act. Appeal dismissed.
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