9911796707
TMI Blog1969 (9) TMI 111X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant thereafter used that mark on multi-vitamin preparations in liquid tablet forms and its goods are being sold under that mark at least since the year 1951. On January 28, 1957 the respondent applied for registration of its mark "DROPOVIT" in respect of "medicinal and pharmaceutical preparations and substances". The application was registered but the advertisement of the respondent's application escaped the notice of the appellant who did not hence oppose the registration. By a letter dated March 4, 1958 Messrs Voltas Ltd., the appellant's 'agents, drew the attention of the appellant to the respondent's mark "DROPOVIT". There was negotiation between the parties but on March 19, 1958 the respondents wrote to the appellant refusing to alter its trade mark. On January 21, 1959 the appellant applied for rectification of the Register by removal therefrom of the respondent's trade mark. The ground urged in support of the application was that the respondent's mark so nearly resembled the appellant's mark as to. be likely to deceive or cause confusion. On March 9, 1960 the appellant applied for amendment of the applicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of a trade mark on the ground of any contravention, or failure to observe a condition entered on the register in relation thereto." Section 2(1)(d) defines the phrase "deceptively similar" as follows: "A mark shall be deemed to. be deceptively similar 'to another mark if it so nearly resembles that other mark as to be likely to deceive or cause confusion;" The first question to be considered in this appeal is whether the word "DROPOVIT" is deceptively similar to the word "PROTOVIT" and offends the provision of s. 12 (1 ) of the Act. In other words the question is whether the respondent's mark so nearly resembles the registered m,ark aS to be "likely to deceive or cause confusion." It is not necessary that it should be intended to deceive or intended to cause' confusion. It is its probable effect on the ordinary kind of customers that one has to consider. In Parker-Knoll Ltd, v. Knoll International Ltd, Lord Denning explained the words "to deceive,' and the phrase "to cause confusion" as follows 1: . "Secondly, 'to deceive' is one thing. To 'Cause confusion' is another. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er so as to bring the former within the limits of section 12 of the Trade Marks Act, 1938, must nearly always depend on first impression, for obviously a person who is familiar with both words will neither be deceived nor confused; It is the person who only knows. the one word and has perhaps an imperfect recollection of it who is likely to be deceived or confused. .Little assistance, therefore, is to be obtained from a meticulous comparison of the two words, letter by letter .and syllable by syllable, pronounced with the clarity to be expected from a teacher of elocution. The Court must be careful to make' allowance for imperfect recollection .and the effect of careless pronunciation and speech on the part not only of the person seeking to. buy under the trade description, but also of the shop. assistant ministering to that person's wants". It is also important that the marks must be compared as wholes. It is not right to take a portion of the word and say that because that portion of the word differs from the corresponding portion of the word in the other case there is no sufficient similarity to cause confusion. The true test is whether the totality of the proposed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecided on this basis. The question o,f deceptive similarity must therefore be decided o.n the basis of the class of goods to which the two trade marks apply subject to the limitation agreed to by the respondent. From the nature of the goods it is likely that most of the customers would obtain a prescription. from a doctor and show it to the chemist before the purchase. In such a case, except in the event of the handwriting of the doctor being very bad or illegible the chance of confusion is remote. As we have already observed the evidence shows that there are as many as 57 trade marks in the Register of Trade Marks with the suffix "VIT". Therefore, even an average customer would know that in respect of Vitamin preparations the word "VIT" occurs in large number of trade marks and because of this he would naturally be on his guard and' take special care against making a mistake. In this connection the provisions of the Drug Rules, 1945 are also relevant. Under r, 61(2) vitamin preparations would be covered by item 5 in Schedule C-( 1 ) to the Rules and a licence would be required to stock such vitamin preparations and to sell them retail. The question of confu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Privy Council referred to that interpretation of Parker J., as "the best standing interpretation". The question arising in this case is whether the word "DROPOVIT" would strike an ordinary person' knowing English as meaning. "DROP OF VITAMIN". In this connection the High Court has pointed out that the original application for rectification did not contain the ground that the word of "DROPOVIT" was descriptive. It was, therefore, legitimate to draw the inference that the word "DROPOVIT" did: not strike even Messrs Depenning and DePenning the legal advisers of the appellant as being descriptive. It was also pointed out that in his judgment Mr. Justice Tarkunde has remarked that when the case was opened before, him he did not understand that the word "DROPOVIT" meant "DROP OF VITAMIN" till the explanation of that word was given to. him. We see no reason, therefore, to differ from the reasoning of the High Court on this 'aspect of the case. If the word "DROPOVIT" is not a descriptive word it must be held to be an invented word. It is true that the word "DROPOVIT" is coined out of words ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
