( 1 ) THE petitioner on 16th April, 1968 filed an application being Application No. 248584 with the Registrar of Trade Marks to register in Part A of the Register, a trade mark consisting of the word "yera" in Class 3 in respect of perfumery, cosmetics and non-medicated toilet preparation. The application was duly advertised in the Trade Mark Journal No. 466 dated 1st November, 1968. The respondent -M/s. Alembic Glass Industries Limited who held registration in respect of the same trade trade mark "yera" in respect of various goods falling Class 9, 10, 11, 14, 17, 19, 20 and 21 objected to the registration of the aforesaidtrade mark on 26th February, 1969 under Section 9, ll (a), ll (e), 12 (1) and 18 (1) of the Trade and Merchandise Act, 1958 (hereinafter referred to as the Act ). By order dated 8th June 1973, Assistant Registrar of Trade Marks, New Delhi rejected the application of the petitioner for registration on the ground that the trade mark applied for, if allowed to be registered in Class 3 as prayed by the petitioner was liable to deceive or cause confusion and also that the petitioner not being the proprietor of the said trade mark was not entitled torotection in the court of law within the meaning of Section ll (e) of the Act. The petitioner has challenged this order of the Assistant Registrar of Trade Marks in this petition under Section 109 of the Act and Article 227 of the Constitution of India.

( 2 ) LEARNED counsel for the petitioner made a two fold challenge. Firstly, it was contended that unless there was a real tangible danger of causing confusion or possibility of deception, registration of a trade mark of goods which are not similar should not be refused. Learned counsel submitted that the petitioner had made the application for registration of the trade mark within three months of its commencement of the manufacture of the perfumery and though several years have passed since then, til] today no action has been taken by the respondent against the petitioner alleging either for passing off or infringement of the trade mark, the balance of convenience is, therefore, in favour of the petitioner and considerable hardship would be caused if the trade mark applied for by the petitioner is not registered. Learned counsel further submitted that since there is no trade connection between the petitioner and the respondent and there is no similarity in the goods, Section ll (a) of the Act will not be attracted in the present case. Learned counsel submitted that the reputation is attached to the goods and the goods manufactured by the respondent are distinctly not similar to the goods manufactured by the petitioner. Learned counsel relied on Bridgestone Co. (P) Ltd. v. Bridgestone Tyre Co. Ltd. , Tokyo, Japan, (2) D. L. T. 1966 p. 143 and Nestle s Product Limited and Others v. Mis. Milkmade Corporation and Others, AIR 1974 (Delhi) 40 in support of this contention. Secondly, it was contended that petitioner s application could not be rejected on the ground that the petitioner would be disentitled to protection in the court of law because once it is held that the goods are not of the similar description and are different, no case for passing off can be filed by the respondent and, therefore. Sub-section (e) of Section 11 of the Act would not be attracted.

( 3 ) ON behalf of the respondent, reliance was placed on M/s. Jugmug Electric and Radio Co. v. M/s. Telerad Pvt. Ltd. and Another, 1978 (1) I. L. R. 667 The Eastman Photographic Materials Co-operative Limited and Another v. The John Griffiths Cycle Corporation Ltd. and Others, 15 R. P. C. (1898) 105. In the Matter of an Application by Edward Hack for registration of a trademark 58 R. P. C. 91, Sunder Parmanand Lalwani and Others v. Caltex (India) Limited AIR 1969 (Bombay) 24 and M/s. Cibs Limited Basle Switzerland v. M. Ramalingum and Others, AIR 1958 (Bombay) 56 in support of the contention that once it is found that the trade mark is distincti