Judgement

MUDHOLKAR, J. : In this appeal by a certificate granted by the High Court of Calcutta under Art. 133 (1) (c) of the Constitution, the question which arises for consideration is whether the Deputy Registrar of Trade Marks, Calcutta, was right in admitting to registration the trade mark "Durex" which respondent No. 1 claims to own and is using on the packing of the contraceptives manufactured and marketed by it.

2. The Durex Products Inc., of New York City, U. S. A. made an application before the Deputy Registrar of Trade Marks on May 28, 1946 for registering the mark "Durex" used by it on "contraceptive devices including prophylactic sheaths or condrums, vaginal diaphraghms, instruments for inserting diaphraghms and models for demonstrating insertion of diaphragms, vaginal jellies, applicators for vaginal jellies and surgical lubricating jellies". Its claim is disputed by the London Rubber Co. Ltd., London, the appellant before us by lodging an opposition to the registration on March 29, 1951, The appellant claims to be well-established manufacturer of surgical rubber goods and proprietor in India of the trade mark "Durex" which it has been using in India since the year 1932