( 1 ) ON April 28, 1960 the second respondent filed an application for registration, in Part A of the Register, of a trade mark consisting of a label containing the image of a Goddess seated on a Lon and the words "ma Durga Brand in class V. , "in respect of agricultural implements specially for chaffcutter blades". The application was thereafter advertised in the Trade Mark Journal. The application for registration was opposed by the appellant, and the opposition was based on the provisions in Sections 11 and 12 (I) of the Trade and Merchandise Marks Act, 1958, (hereinafter referred to as the Act ). The appellants in their opposition claimed that they were the prior users of a trade mark, which was duly registered, under the provisions of the Act being trade mark No. 12301 registered in Class VII in respect of, inter alia, "chaffcutter Blades and Knives". The substance of the appellant's contention in the opposition to the registration of "ma Durga Brand" with the device mentioned above, was that the mark proposed to be registered, resembled the registered trade mark of the appellant and such resemblance would lead to confusion and deception. This part of the opposition is based on Section 12 (1) of the Act which runs as follows:"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 second branch of the opposition is founded on Section 11 (a) of the Act which is as follows:"a Mark- (a) the use of which would be likely to deceive or cause confusion, xx XX XX shall not be registered as a trade mark. "

( 2 ) BY an order dated November 7, 1964, the Deputy Registrar of Trade Marks dismissed the appellant's opposition. Being aggrieved by the Deputy Registrar's order the appellant preferred an appeal to this Court under Section 109 of the Act. This appeal was dismissed by a judgment and order dated April 24, 1968, against which this appeal has been preferred.

( 3 ) THE foundation and basis of the bar imposed by Section 11 in the Act, against registration of certain marks, is the acquisition of a reputation by other users of similar marks, to such an extent that the registration of the mark of the applicant would be likely to deceive or cause confusion. In other words, if the Registrar is

satisfied that a mark proposed to be registered would deceive or confuse a buyer in the market, because there are similar marks in use by persons who have acquired a reputation with regard to such marks, the Registrar would decline to register the mark.

( 4 ) THE first question that arises is on whom does the onus lie to prove that the use of the mark would not deceive or cause confusion? Does the onus lie upon the applicant who has made the proposal for registration of the mark? Or does it lie upon the party who has given notice of opposition to the registration of the mark? The provisions in Section 11 of the Act are pari materia with Section 11 of the English Trade Marks Act, 1938, which is as follows:--"11.-- It shall not be lawful to register as a trade mark or part of a trade mark in matter the use of which would,. by reason of its being likely to deceive or cause confusion or otherwise, be disentitled to protection in a Court of Justice, or would be contrary to law or morality or any scandalous design. "

( 5 ) THE English Courts have held that the onus of proving that the use of a mark would not deceive or cause confusion lies on the applicant. In Kerly's 9th Ed. P. 448 the law is stated to be as follows: "in such cases the onus is on the applicant to satisfy the Registrar that the Trade Mark applied for, is not reasonably likely to deceive or cause confusion, so that refusal to register does not involve the conclusion that the resemblance is such that either an infringement a