James Chadwick & Bros. Ltd. vs The National Sewing Thread Co. Ltd.

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1951 Supreme(Bom) 39

IN THE HIGH COURT OF BOMBAY
Chagla, C.J. and Bhagwati N.H. , J.
Appellants: James Chadwick Bros. Ltd.
Vs.
Respondent: The National Sewing Thread Co. Ltd.
O.C.J. Appeal No. 95 and Misc. Petn. No. 2 of 1950
Decided On: 16.03.1951
Counsels:
V.F. Taraporewalla, Adv. for the Registrar of Trade Marks
For Appellant/Petitioner/Plaintiff: C.K. Daphtary, Adv. General
For Respondents/Defendant: S.T. Desai, Adv.

Headnote:A.Trade Marks - deceptively similar - Second Appeal available or not under Section 76 and 77 Trade Marks Act - Clause 15 of Letters Patent Appeal - registration of trade mark for cotton sewing thread refused for deceptively similar to respondents mark sought to be registered - contention: appeal was under special statute, not under Government of India Act 1935, hence no second appeal available under Letters Patent - held, when Learned Single Judge of High Court heard the appeal and disposed of it, he was exercising the jurisdiction vested in him by Art 225 of the Constitution, if he was exercising that jurisdiction, then, if his decision constituted a judgment, that judgment fell within the purview of Clause 15, Letters Patent. ( para 6)
       B.Trade Mark - Order of Single Judge of High Court under the Act - appeal against registrar of Trade Marks refusing to register a trade mark being deceptively similar to another - appellant producing thread of eagle mark for last two years - appellate court reversed the order of registrar - the Learned Single Judge of High Court disposed of the appeal pursuant to Rule 617 made under the Trade Marks Act, in sitting singly in exercising that jurisdiction he was doing so pursuant to the procedure laid down by the High Court under Article 225 of the Constitution. ( para 7)
       C.Deceptively similar - cotton sewing thread mark - both applied for eagle mark - names different - appellant denied registration for deceptively similar mark to that of respondent which was under registration - Section 8 and 10 of Trade Marks Act - trade mark likely to deceive or cause confusion - appellant producing thread of eagle mark for last two years - According to the registrar there is a close resemblance between the trade mark of the appellants the trade mark of the respondents such as likely to deceive or cause confusion, also it is his opinion that apart from any resemblance in itself the trade mark sought to be registered is one which is likely to deceive or cause confusion - burden on appellant - discretion of the registrar should not be interfered with unless the Court comes to the conclusion that the Registrar in coming to the conclusion that he did was clearly wrong or patently in error - the question is whether the bird in the respondents trade mark is likely to be mistaken by an average man of ordinary intelligence as an Eagle - what is the feature in the appellants trade mark which strikes the eye fixes itself in the recollection - eagle - appeal allowed - order of registrar restored. ( para 10)
       Impliedly overruled : the Calcutta High Court in India Electric Works v. Registrar of Trade Marks, A. I. R. (31) 1947 Cal. 49.

JudgmentChagla, C.J.

1. This is an appeal from a judgment of Shah J., by which he set aside the order of the Registrar of Trade Marks directed the Registrar to register the mark of the petitioners as a trade mark. The petitioners applied on 12-1-1943, to the Registrar of Trade Marks for the registration of their mark in connection with cotton sewing thread. There was an opposition by the appellants the Registrar came to the conclusion that the mark which the respondents sought to register was likely to deceive cause confusion therefore he refused to register the mark. From this decision of his an appeal was preferred to the High Court, , as I just said, Shah J. after hearing the appeal came to the conclusion that the Registrar was wrong that the respondents were entitled to have their trade mark registered.

2. A preliminary objection has been taken by Mr. Desai that this appeal is not competent. The judgment of Shah J., is subject to appeal provided it constitutes a judgment within the meaning of Clause 15, Letters Patent, the relevant provisions of that clause material to this discu-sion are :

"And we do further ordain that an appeal shall lie to the said High Court of Judicature at Bombay from the judgment of one Judge of the said High Court or one Judge of any Division Court, pursuant to Section 108, Govt. of India Act."

Mr. Desais contention is two-fold : (1) That no appeal lies looking to the provisions of the Trade Marks Act, (2) that no appeal is competent under Clause 15, Letters Patent. Dealing with the first point, it is urged by Mr. Desai that the Trade Marks Act constitutes a special law dealing with a special subject. It is a self-contained Code it contains all the provisions with regard to the various tribunals that have got to deal with the matters arising under that Act. In order to appreciate the contention of Mr Desai it is neces-sary to look at some of the sections. Section 76 (1) provides :

"Save as otherwise expressly provided ia this Act an appeal shall lie, within the period prescribed by the Central Govt. from any decision ot the Registrar under this Act or the rules made thereunder to the High Court having jurisdiction."

Then Sub-clause (3) provides :

"Subject to the provisions of this Act of rules made thereunder, the provisions of the Civil P. C., 1908, shall apply to appeals before a High Gourb under this Act." And Section 77 provides :

"A High Court make rules consistent with this Act as to the conduct procedure of all proceedings under this Act before it."

What is argued by Mr. Desai ia that Section 76 (1) provides for one appeal only to the Eigh Court, that appeal having been disposed of by Shah J. no second appeal lay to this Court. Mr. Desai rightly contends that an appeal is the creation of a statute, it the special law does not give the right to a litigant of having two appeals, we cannot confer that right upon the appellants con- trary to the express provision of Section 76 (1). It is further argued that under Section 76 (3) the appeals are to be regulated by the Civil P. C., there is nothing in the Civil P. C., which provides for a second appeal in cases like those falling under the Trade Marks Act. It is well established, as we shall presently point out, that when a statute directs that an appeal shall lie to a Court already established, then that appeal must be regulated by the practice procedure of that Court. If therefore Section 76 provides that an appeal shall lie to this High Court if that appeal is disposed of by a single Judge, if the rules of practice procedure of this Court provide for a second appeal from a decision of a single Judge, then those rules of practice procedure would prevail unless the statute itself expressly provided that there shall be no further appeal. In Section 76 there is no bar to any second appeal if a second appeal would lie under the rules of practice procedure obtaining in this Court, therefore, what we have to find is wheth

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