( 1 ) THIS is an appeal under Section 109 of the Trade and Merchandise Marks Act of 1958.

( 2 ) THE appellant is the Imperial Tobacco Co. of India Limited having its registered office at Virginia House, 37 Chowringhee, Calcutta. The respondents are the Registrar and Deputy Registrar of Trade Marks.

( 3 ) THE facts are briefly as follows: on 29. 2. 60, the appellant made the first application for registration of a trade mark before the Registrar applying for registration as a trade mark of a label bearing the device of snowdat hills in outline and the word 'simla' written prominently in various panels of the label. The specification of the goods in the application read as "manufactured tobacco. " This application was for registration of the trade mark in part 'a' of the Registrar in case 34. The application stated : "the said trade mark is proposed to be used. " The point is that on 21. 2. 60 there was no use of the said trade mark and it was only proposed to be used at that point of time. By his letter dated 9. 12. 60, the Registrar of Trade Marks informed the appellant as follows: "word 'simla' which forms the essential and distinguishing feature of the mark i