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TMI Blog1972 (11) TMI 103X X X X Extracts X X X X X X X X Extracts X X X X ..... he device of a lion in class 25 in respect of shoulder pad in the Union Territory of Delhi and that the adoption of the appellant's trade mark by the respondent was dishonest. The Assistant Registrant while holding that the proposed trade mark of the respondent was likely to device the public into believing that the proposed trade mark of the respondent was the same as that the appellant inasmuch as both the words 'Lion' bad 'Tiger' were known in Urdu. Hindi and Punjabi as 'Sheer' but taking note of the fact that the appellant trade mark was registered only for the Union Territory of Delhi rejected the objection of the appellant to the registration o the respondent trade mark for areas other than the Union Territ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncerned. 3. The learned Assistant Register has also given a finding the expect for the fact that both the lion and tiger we known by the name of Sher in Hindi, Urdu and Punjabi the two marks are not similar. this finding is challenged by the appellant. According to the appellants even the device in the two marks is deceptively similar. I there fore compared the two marks both as they appeared in the Trade Marks Journal as well as they appeared on the label affixed to the shoulder pads. Applying the principle laid down by the Bombay High Court in Cuba Ltd. Basle Switzerland v. M. Rambling, AIR1958Bom56 . I am the view that the two marks are deceptively similar although they might differ in some details. it any be stated that the tiger in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticular area of region and that the only exception to this rule is the one which is covered by sub-section (3) of Section 12 of the Act in this connection . it is pointed out that the respondent do not seek to come within the scope of sub-section (3) inasmuch as they do not claim any honest concurrent use of their trade mark. I am unable to accept this contention for the reason that the word "a trade mark which is already registered" appearing in sub-section (1) of Section 12 of the Act must be read along with the provisions of Section 18. Sub-section (4) of Section 18 empowers the Registrar to accept an application "Subject" to such amendments modification condition or limitation if any as he may think fit". The re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... outside the Union Territory of Delhi the use of the respondent proposed trade mark would not be likely to device or cause confusion. Hence Section 11(a) of the act would not be a bar to the registration of the Union Territory of Delhi. 7. The learned counsel for the appellant also sought to bring his case within clause (e) of Section 11 which reads as follows:-- "Which would be otherwise be disentitled to protection in a court". But he was not able to substantiate his case under this clause of the not able to show how his case would come within the scope of this clause". 8. The final contention of the leaned counsel for the appellant is that the adoption by the respondent of a trade mark which was deceptively similar to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f dishonesty and the learned Assistant Registrar ought to have exercised his discretion under Section 18 of the Act and refused registration of the respondent proposed trade mark. I am conscious of the rule that an appellant court should not ordinarily interfere with the discretion exercised by the Registrar under Section 18 of the Act. But in this case the leaned Assistant Registrar had declined to exercise his discretion against the respondent only because he was to the view that the respondent were not guilty of dishonest trade practice. This view of the learned Assistant Registrar is clearly wrong and Therefore the discretion vested in him had been exercised on the basis of the wrong view. this is a fit case in may view where this court ..... X X X X Extracts X X X X X X X X Extracts X X X X
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