TMI Blog1953 (5) TMI 13X X X X Extracts X X X X X X X X Extracts X X X X ..... laintiff 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. - Civil Appeal No. 135 of 1952. - - - Dated:- 7-5-1953 - Mahajan, Mehr Chand, Bose, Vivian And Jagannadhadas, B.,JJ. JUDGMENT The Judgment of the Court was delivered by Mahajan J.- This is an appeal on a certificate under section 109(c), Civil Procedure Code, from the judgment of the High Court of Ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of South Arcot against the appellants. That action failed on the ground that the evidence offered on their behalf was meagre and they failed in proving that there was any probability of purchasers exercising ordinary caution being deceived in buying the defendants goods under the impression that they were the plaintiff s goods. The result was that the grievance of the respondents remained unredressed. As above stated, in 1942, the appellants made an application to the Registrar of Trade Marks at Bombay for the registration of their mark Vulture Brand under the Trade Marks Act, 1940. The respondents gave notice of their opposition to that application under section 15(2), Rule 30, of the Trade Marks Act, 1940. By his order dated 2nd September, 1949, the Registrar of Trade Marks allowed the respondents opposition and rejected the application made by the appellants. He came to the conclusion that the appellants mark so nearly resembled the mark of the respondents as to be likely to deceive or cause confusion. He further held that to describe the mark of the appellants as Vulture Brand when the device was that of an eagle was misleading and liable to cause confusion. The app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which confers on it power in respect to the method and manner of exercising that jurisdiction. The rule is well settled that when a statute directs that an appeal shall lie to a Court already established, then that appeal must be regulated by the practice and procedure of that Court. This rule was very succinctly stated by Viscount Haldane L.C. in National Telephone Co., Ltd. v. Postmaster- General in these terms:- When a question is stated to be referred to an established Court without more, it, in my opinion, imports that the ordinary incidents of the procedure of that Court are to attach, and also that any general right of appeal from its decision likewise attaches. The same view was expressed by their Lordships of the Privy Council in R.M.A.R.A. Adaikappa Chettiar v. Ra. Chandrasekhara Thevar (2), wherein it was said:- Where a legal right is in dispute and the ordinary Courts of the country are seized of such dispute the Courts are governed by the ordinary rules of procedure, applicable thereto and an appeal lies if authorised by such rules, notwithstanding that the legal right claimed arises under a special statute which does not, in terms confer a right of appeal. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umscribed in any manner whatever and the nature of the power is such that it had, to be conferred by the use of words of the widest amplitude. There could be no particular purpose or object while conferring the power in limiting it qua the jurisdiction already possessed by the High Court, when in the other provisions of the Government of India Act it was contemplated that the existing jurisdiction was subject to the legislative power of the Governor-General and the jurisdiction conferred on the High Court was liable to be enlarged, modified and curtailed by the Legislature from time to time. It is thus difficult to accept the argument that the power vested in the High Court under subsection (1) of section 108 was a limited one, and could only be exercised in respect to such jurisdiction as the High Court possessed on the date when the Act of 1915 came into force. The words of the sub-section vested in the court cannot be read as meaning now vested in the court . It is a wellknown rule of construction that when a power is conferred by a statute that power may be exercised from time to time when occasion arises unless a contrary intention appears. This rule has been given statutor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had already been conferred by section 13 of the Indian High Courts Act of 1861. We are further of the opinion that the High Court was right in the view that reference in clause 15 to section 108 should be read as a reference to the corresponding provisions of the 1935 Act and the Constitution. The canon of construction of statutes enunciated in section 38 of the Interpretation Act and reiterated with some modifications in section 8 of the General Clauses Act is one of general application where statutes or Acts have to be construed and there is no reasonable ground for holding that that rule of construction should not be applied in construing the charters of the different High Courts. These charters were granted under statutory powers and are subject to the legislative power of the Indian Legislature. Assuming however, but not conceding, that strictly speaking the provisions of the Interpretation Act and the General Clauses Act do not for any reason apply, we see no justification for holding that the principles of construction enunciated in those provisions have no application for construing these charters. For the reasons given above we hold that the High Court was perfectly justi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erred by that Act. Reference to the provisions of section 9 of the Indian High Courts Act of 1861 which section 106 (1) of the Government of India Act, 1915, replaced makes this proposition quite clear. In express terms section 9 made the jurisdiction of the High Courts subject to the legislative powers of the Governor-General in Legislative Council. Section 106 only conferred on the High Court jurisdiction -and power to make rules for regulating the practice of the court, as were vested in them by Letters Patent, and subject to the provisions of any such Letters Patent, all such jurisdiction, powers and authority as were vested in those courts at the commencement of the Act. The words subject to the legislative powers of the Governor-General used in section 9 of the Charter Act of 1861 were omitted from the section, because of the wide power conferred on the Governor-General by section 65 of the Government of India Act, 1915. The jurisdiction conferred on the High Courts from the very inception was all the time liable to and subject to alteration by appropriate legislation. It is therefore not right to say that section 108 (1) of the Government of India Act, 1915, empowere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y to the jurisdiction to hear appeals from the the civil Courts mentioned in that clause and appeals under Acts passed and regulations in force up to the year 1865. In our opinion the learned Judges were in error in thinking that the appellate jurisdiction possessed by the High Court under the Letters Patent of 1865 was narrower than the jurisdiction it possessed under clause 15 of the Letters Patent of 1861. Whatever jurisdiction had been conferred on the High Court by clause 15 of the Letters Patent of 1861 was incorporated in the Letters Patent of 1865 (as amended) and in the same measure and to the same extent by the provisions of clauses 16 and 44 of that charter. We are further of the opinion that the Calcutta decision is also erroneous when it expresses the view that the range and ambit of the power conferred on the High Court by section 108 of the Government of India Act of 1915 was limited by the provision of section 106 (1) of the Act or by the provisions of clause 16 of the Letters Patent. There is no justification for placing such a construction on the plain and unambiguous words of that section. Section 108 is an enactment by itself and is unrestricted in its scope, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een modified by preserving the powers of Indian Legislative authority in section 9 of the High Courts Act, by the amended clause 44 of the Letters Patent and by section 223 of the. 1935 Act. The learned Judge however felt that there was still a difference of a vital character between the Letters Patent of the Calcutta High Court and of the newly constituted High Courts inasmuch as cases subsequently declared by any Indian enactment to be subject to appeal to the Calcutta High Court could not strictly speaking come within its appellate jurisdiction under clause 16 although the High Court exercised appellate jurisdiction over these. We have not been able to appreciate this distinction and it seems to us it is based on some misapprehension as to the true intendment of clause 44 of the Letters Patent. The purpose and intent of clause 44 of the Letters Patent was to declare that in addition to the jurisdiction conferred by clause 16 it would also exercise the appellate jurisdiction which from time to time would be conferred on it by subsequent enactments. It is inconceivable that larger appellate jurisdiction and greater powers in the matter of making rules would have been conferred upo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on a number of grounds. The first error lies in the assumption that the Gurdwara Act did not create new rights and did not create new appellate jurisdiction in the High Court which it did not possess before. The Gurdwara Act created peculiar rights in religious bodies and negatived the civil rights of large bodies of Mahants and other persons. Stick rights were unknown before in civil law. The High Court as an established court of record was constituted a court of appeal from the decisions of the Gurdwara Tribunal. The principle enunciated in 1913 Appeal Cases 546 was applied by Sir George Rankin to appeals heard by the High Court under its newly created appellate jurisdiction, and we speak with great respect, in our opinion, very correctly. We have not been able to appreciate the special peculiarities of the rights created by the Trade Marks Act which place the appellate jurisdiction conferred on the High Court by section 76 on a different level from the jurisdiction created by the special provisions of the Gurdwara Act. The rights created by the Trade Marks Act are civil rights for the protection of persons carrying on trade under marks which have acquired reputation. The statute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Council decisions above referred to. There, by section 188 of the Sea Customs Act the jurisdiction of the civil courts was excluded, and an order made by the Collector on an appeal from an order of the Assistant Collector was made final. A suit was filed to challenge the order of the Collector on the ground that the finality declared by section 188 was no bar to such a suit in a civil court. That contention was negatived on the ground that when a liability not existing in common law is created by a statute which at the same time gives a special and particular remedy for enforcing it, with respect to that class it has always been held that the party must adopt the form of remedy given by the statute. The Trade Marks Act has not created any special forum for the hearing of an appeal as had been created by the Sea Customs Act. On the other hand, the Trade Marks Act has conferred appellate jurisdiction on an established court of law. Further, the Sea Customs Act had made the order of the Collector passed on an appeal final. There is no such provision in the Trade Marks Act. It has only declared that an appeal shall lie to the High Court from the order of the Registrar and has said not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cular 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 clear to us that the bird in the appellants trade mark is likely to be mistaken by an average man of ordinary intelligence as an Eagle and if he asked for Egg e goods and he got goods bearing this trade mark of the appellants it is not likely that he would reject them by saying that this cannot be an Eagle. Two years prior to the application for registration, the respondents described this particular bird an Eagle and called their brand Eagle Brand, The same bird was later on described by them a vulture and the explanation offered was that they so described owing to an honest and bona fide mistake. We have no hesitation in holding that the appellants camouflaging an Eagle into a vulture by calling it such is l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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