The main legal point established is that the likelihood of deception or confusion in the use of a trade mark must be judged from a business and commercial point of view, considering the nature and composition of the goods, their respective usages and functions, and the trade channels through which they are bought and sold.

( 1 ) BY this judgment/order I shall dispose of the appeal filed by the petitioner under Section 109 (2) of the Trade and Merchandise Marks Act as against the order dated 30. 12. 1997 passed by the Assistant Registrar of Trade Marks. By the aforesaid order the Assistant Registrar of Trade Marks dismissed the opposition filed by the petitioner herein and accepted the application of the respondent for registration.

( 2 ) ON 22. 6. 1979, Shri Pramod Kumar Garg trading as M/s. Prakash Agricultural Industries (India), Agra, U. P. filed an application before the Trade Mark Registry seeking for registration of the trade mark swaraj (word per se) in respect of Diesel Oil Engines (not for land vehicles), hand water pumps and parts thereof included in Clause 7 for sale in the States of Uttar Pradesh, Madhya Pradesh, Rajasthan, Bihar and Haryana. In the said application the respondent claimed die user of the mark applied for since 1. 6. 1975. The said application was ordered to be advertised as accepted and was accordingly advertised in trade mark journal dated 16. 3. 1984. Subsequent thereto the petitioner herein gave notice of its intention to oppose the registration of the mark advertised on the ground of its being violative of Sections 11,12 and 18 of the Trade and Merchandise Marks Act. The aforesaid notice of opposition was contested by the respondent by filing counter statement. The parties thereafter filed their evidence and the matter was set down for hearing and by the order dated 16. 9. 1993 the said opposition was dismissed and the application for registration was accepted.

( 3 ) BEING aggrieved by the aforesaid order the petitioner preferred an appeal against the aforesaid order dated 16. 9. 1993 in this Court which was registered as C. M. (M) 49/1994. This Court by order dated 27. 1. 1997 remanded the case back for fresh consideration after affording sufficient opportunity to the parties to lead further evidence in support of their respective cases. Pursuant thereto fresh evidence was filed by the parties and the matter was heard afresh and by the impugned order passed on 30. 12. 1997 the opposition was again dismissed and the application of the respondent was directed to proceed for registration, as against which the present petition has been preferred.

( 4 ) IN the impugned order it was held by the Assistant Registrar that the functions and uses of both the sets of goods are quite different and that the goods namely - Diesel Oil Engines and Hand Water Supply Pumps and parts thereof are the goods of totally different description from that of the goods of the opponents namely - Tractors and parts thereof, harvester combines and fork lifts and therefore, the prohibition under Section 12 (1) of the Act was not attracted. It was also held that since the goods of the applicants and that of the opponents are quite different there is no likelihood of any deception or confusion in the minds of the purchasers. The Assistant Registrar proceeded to hold that even if the same mark is used by another person on different goods which have no trade connection either by way of its trade usages or by way of its connection during the course of trade channels the use is not likely to create any confusion or deception unless some strong evidence of some case of confusion and deception is placed on record and proved. As no such evidence was placed on record in the present case, it was held that objection under Section 11 (a) as raised by the opponents was without any merit. It was also found by the Assistant Registrar that use of the mark by the respondents was much earlier to the date of the application and therefore, the contention of the petitioner that the respondents had no claim to the proprietorship of the mark as on the date of the application was rejected. ,

( 5 ) LEARNED Counsel appearing for the petitioner submitted that the Assistant Registrar was not justified in holding that the goods manufactured by the respondent na