A trade mark is available for registration if it consists of words having no direct reference to the character or quality of the goods, and the reference to the character and quality should be direct and plain, not remote and far-fetched.

( 1 ) THIS is an appeal under Section 109 (2) of Trade and Merchandise Marks Act, 1958 feeling aggrieved by order dated 22nd August, 1979 passed by the Assistant Registrar of Trade Marks, Delhi rejecting the petitioners application for registration of a trade mark in terms of Section 18 (4) of the Act.

( 2 ) ON 5th December, 1974, the petitioners filed an application to register a trade mark consisting of words neelam SOAP in Class 3 in respect of washing soaps. The mark was subsequently confined to the word NEELAM. The application was objected to by the Registry on the ground that the mark applied for was laudatory of the goods and therefore it did not qualify for registration under Section 9 of the Act. The petitioner submitted and produced expert evidence in support of his submission that NEELAM means a precious stone and it has no reference to blue colour The petitioner had sought for registration in Part-A of the Register but at the hearing before Registrar it was submitted that the application could be considered for registration in Part-B. The Registrar has held that the meaning of the word NEELAM is blue in Tamil language. Washing soap can be blue in colour. The word NEELAM would be a most apt description thereof and therefore the word was incapable of acquiring the distinctive meaning in respect of blue coloured soap.

( 3 ) HAVINGHEARD,i am of the opinion that the Registrar has committed an error in refusing the application for registration. A trade mark is available for registration in Part-A of the Register if it contains or consists of one or a more words having no direct reference to the character or quality of the goods or any other distinctive mark within the meaning of Clauses (d) and (e) of Sub-section (1) of Section 9 of the Act. A trade mark is available for registration in Part-B if it is distinctive in relation to the goods in respect of which it is proposed to be registered.

( 4 ) TO be excluded from registration, the word has to be so utterly descriptive of the goods concerned as to be totally unregistrable. In J. L. Mehta and Anr. v. Registrar of Trade Marks, AIR 1962 Bombay 82, it was held :

"the Trade Marks Act, 1940, is an all India Act and whenever any word is sought to be registered as a trade mark, that word should in no event be descriptive of the goods in respect of which it is sought to be registered as a trade mark. When the word is one which has different meanings in different parts of the country, in such a case the reference to any word or words descriptive of the goods as used in Section 6 of the Trade Marks Act would only mean such word or words as would be known to the people all over the country and not only to some sections of the people or in some parts of the country. "

( 5 ) IN the case before the Bombay High Court the word Sulekha was held available for registration as it was a known personal name of female and did not necessarily mean good writing though by a combination of words SU and LEKHA it could so mean in the dictionary.

( 6 ) IN Mohd. Rafiq and Anr. v. Modi Sugar Mills Ltd. , AIR 1972 Delhi 46 it was held that the word SUN was not a laudatory term when used in respect of the lanterns manufactured by the applicant and hence was available for registration. Their Lordships held that the reference to the character and quality should bedirect and plain and not remote and far fetched.

( 7 ) IN Kanwarayurvedic Pharmacy, Kanpur v. The Registrar of Trade Marks and Anr. , 1966 (2) DLT 13 it was held that for the purpose of finding out whether the word had a direct reference to the character or quality of the goods, one must look at the word not in its strict grammatical significance but as would represent itself to the public at large. We should look at it to form a opinion as to what it connotes.

( 8 ) THE word NEELAM as per most of the standard dictionaries means sapphire which is a precious stone. It will be too far fetched to co-relate it with a meaning descri