The court held that the trademarks CIPLAMINA and COMPLAMINA were not deceptively similar, considering their phonetic and visual aspects.

LENTIN, J.:- Is the word CIPLAMINA deceptively similar to COMPLAMINA? Such is the essential nature of the controversy before us.

2. The appellants carry, on business inter alia as manufacturers of medicinal and pharmaceutical preparations. One of their trade marks is COMPLAMINA registered on 5th May 1960 for a medicinal and pharmaceutical preparation which according to the appellant's is sold in India since 1966 in the form of ampoules (under doctors' prescription) and tablets (across the counter) for the treatment of vascular disorders. The registration is subsisting. On 17th July 1972, the 1st respondent-Company (referred to hereafter as "the respondents") who carry on like business, filed an application for registration in their name the mark CIPLAMINA proposed to be used by them in Part A Class 5 in respect of pharmaceutical and medicinal preparation. The appellants filed their notice of opposition inter alia on the ground that the respondents' proposed mark was deceptively similar to their registered mark. The respondents filed their counter-statement. Evidence by way of affidavits was filed by both parties. However, before us neither party relied on them and rightly so because nothing really turns on them. By a speaking order, the Joint Registrar held inter alia that the respondents' proposed mark was deceptively similar to the appellants' registered mark. This finding was reversed by the learned single Judge. However, on Counsel's statement made before him, the learned single Judge limited the registration of the respondents' proposed mark to Part A Class 5 in respect of phramaceutical and medicinal reparations covered by Schedules "H" and "L" of the Drugs and Cosmetics Rules, 1945. Hence the present appeal.

3. In inviting us to hold that the respondents' mark CIPLAMINA is deceptively similar to the appellants' mark COMPLAMINA, it was urged by the appellants' learned Counsel Mr. Tulzapurkar that the reversal of the joint Registrar's finding by the learned single Judge was totally unwarranted. According to Mr. Tulzapurkar, the learned single Judge lead adopted a microscopic method of approach instead of considering the totality of marks and thereby did not apply the correct principles of comparison. Reliance was placed on Re: Bailey (1935) 52 RPC 136, where it was held that before disturbing the Registrar's decision, the Court must be satisfied that he acted on some wrong principle or took into consideration something which he ought not to have done or omitted to take into consideration what he should have done. It was further held that it was not permissible to divide and split up the words to ascertain similarity or to take part of the word and compare it with a part of the other word, each word must be considered as a whole and compared with the other word as a whole; it is wrong to take a portion of the word and say because that portion differs from the corresponding portion of the other word, there is no sufficient similarity to cause confusion. According to Mr. Tulzapurkar, the learned single Judge had committed the very errors cautioned against in Re: Bailey. He also relied on the observations in Eno v. Dunn, (1890) 15 AC 252 at pp. 257-261, quoted with approved by the House of Lords in Aristoc v. Rysta, (1945) 62 RPC 65, 72 as under:-

"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."

Reliance was also placed on Corn Products v. Shangrila, AIR 1960 SC 142, where holding that "Glucovita" and "Gluvita" were deceptively similar, it was observed that overall structural and phonetic similarity in the 2 marks must be considered, the matter being one of first impression from the point of view of a person of average intelligence and imperfect recollection.

4. We are in respectful agreement with the principle laid down by these decisions. But we do not subscrib