Judgment

BACHAWAT, J.:- The appellant is the sole proprietor of a trading concern known as Radha and Co. The respondents Ambal and Co., are a partnership firm. The respondents as also the appellant are manufacturers and dealers in snuff carrying on business at Madras and having business activities inside and outside the State of Madras. On March 10, 1958 the appellant filed application No.183961 for registration of a trade mark in class 34 in respect of "snuff manufactured in Madras". The respondent filed a notice of opposition. The main ground of opposition was that the proposed mark was deceptively similar to their registered trade marks. The respondents were the proprietors of the registered marks Nos. 126808 and 146291. Trade mark No. 126808 consists of a label containing a device of a goddess Sri Ambal seated on a globe floating on water enclosed in a circular snuff at the top of the label, and the name and address "Sri Ambal and Co., Madras" at the bottom. Trade mark No.146291 consists of the expression "Sri Ambal". The mark of which the appellant seeks registration consists of a label containing three panels. The first and the third panels contain in Tamil, Devanagri, Telgu and Kannada the equivalents of the word "Sri Andal Madras Snuff". The centre panel contains the picture of goddess Sri Andal and the legend "Sri Andal".

2. Sri Andal and Sri Ambal are separate divinities. Sri Andal was a vaishnavite woman saint of Srivilliputur village and was deified because of her union with Lord Ranganatha. Sri Ambal is the consort of Siva or Maheshwara.

3. The respondents have been in the snuff business for several decades and have used the word Ambal as part of their mark for more than half a century. The question in issue is whether the proposed mark is deceptively similar to the respondents marks. "Mark" as defined in Section 2 (j) of the Trade and Merchandise Marks Act, 1958 includes "a device brand, heading, label, ticket, name, signature, word, letter or numeral or any combination thereof". Section 12 (1) provides that "save as provided in sub-section (3), no trade mark shall be registered in respect of any goods or description of goods which is identical with or deceptively similar to a trade mark which is already registered in the name of a different proprietor in respect of the same goods or description of goods". The Registrar of Trade Marks observed:-

"In a composite mark the distinctive words, appearing on it play an important part. Words always talk more than devices, because it is generally by the word part of a composite mark that orders will be given. Apart from that, the opponents have a registered mark consisting of the expression Sri Ambal. I have, therefore, to determine whether the expression Sri Andal is deceptively similar to Sri Ambal".

4. He held, "the sound of "Ambal" does not so nearly resemble the sound of "Andal", in spite of certain letters being common to both the marks, as to be likely to cause confusion or deception among a substantial number of persons".

5. The respondents filed an appeal in the Madras High Court. Jagadishan J., observed:

"It is settled law that a trade mark comprehends not merely the picture, design or symbol but also its descriptive name. A copy of colourable imitation of the name would constitute an infringement of the mark containing the name. Nobody can abstract the name or use a phonetical equivalent of it and escape the charge of piracy of the mark pleading that the visual aspect of his mark is different from the mark of the person opposing its registration".

6. He held:-

"The words, Ambal and Andal, have such great phonetic similarity that they are undistinguishable having the same sound and pronounciation. In whatever way they are uttered or spoken, slowly or quickly, perfectly or imperfectly, meticulously or carelessly and whoever utters them, a foreigner or a native of India, wherever they are uttered in the noisy market place or in a calm and secluded area, over the phone or