( 1 ) M/s Bindal Toys has assailed the order dated 22nd February, 1994 passed by the Deputy Registrar, Trade Marks, Delhi (hereinafter called the Registrar ). The order has been assailed primarily on the ground that the Registrar while disposing the opposition application of the appellant, ignored the fact that the appellant had been using the said mark since 1st April, 1975. The said mark became distinctive and associated with the goods of the appellant. Now if the respondent is permitted to adopt the impugned trade mark, the common purchaser will be deceived and get confused. The device of globe in both the marks is-identical resides the letters BTM and GTM will create confusion. Moreover, the get-up, make- up and lettering style of the appellant s trade mark and the proposed by respondent have been ignored by the Registrar, hence the appeal.

( 2 ) IN order to appreciate the contentions raised, the brief facts essential for the determination of the same are that the appellant lodged an opposition to the application filed by the respondent in Class 28 in respect of the specific toys alleged to be manufactured by the respondent. On the application being moved by the respondent, the mark of the respondent was advertised in the Trade Mark Journal on 1st November, 1990. The appellant filed the opposition raising, inter alia, the ground that the appellant had been engaged in the manufacturing of toys under the name and style of M/s Bindal Toys and thus the appellant was the proprietor of the trade mark "b. T. M. label consisting of globe and two boys holding bigul" in respect of toys and playthings. This trade mark was adopted by the appellant on 1st April,1975. It had been in continuous use by the appellant. The appellant earned goodwill in the business, hence applied for registration of the trade mark under Class 28 which was duly accepted for registration. It was advertised on 1st December,1989. The mark "b. T. M. label consisting of globe and two boys holding bigul was duly registered as an artistic work under the Indian Copyright Act and thus the trade mark of the appellant became distinctive and associated on account of its long, continuous, extensive and exclusive user. The appellant had widely advertised this trade mark, therefore, when the respondent applied, the appellant challenged the,. same. In reply the respondent denied all the material averments of the appellant before the Registrar. The respondent took the plea that the appellant was the proprietor of the trade mark gemini with the device of two lions and globe. The appellant s goods are demanded and recognised by the public under the trade mark gemini .

( 3 ) THAT both the parties were given opportunity by the Registrar to lead evidence by way of affidavits. They did file file affidavits by way of evidence. The Registrar by the impugned order came to the conclusion that there was no force in the opposition PW the appellant and proceeded to register. trade mark of the respondent.

( 4 ) THE short point for consideration is what was the opposition before the plan filed by the present appellant? Was it the case of the appellant before the Regular that the trade mark "b. T. M. " is deceptively similar to the mark "g. T. M. " used by the respondent or was it the device of "globe" or "two boys holding the bigul". Perusal of the opposition was filed as Form TM-5 shows that the appellant had alleged himself to be the proprietor of the trade mark "b. T. M. label consisting of two boys holding bigul". It was this trade mark used by the appellant which was infringed by the respondent/ applicant. This was the attack before the Registrar. It was nowhere the case set up by the appellant that the device of "globe" had been infringed or "globe" was the salient feature of his trade mark. Nor was it the case of the appellant that trade mark of the respondent on account of use of "globe" made his products deceptively similar to that of the appellant or would create con