Y. K. Sabharwal J.

( 1 ) THE respondents were the applicants before the Assistant Registrar of Trade Marks, Delhi. They were trading under the name and style of New Era Electric Wares. On 14th April, 1967 the respondents made an application for registration in part a of the Register a Trade Mark consisting the word "escort", in Clause 9, in respect of electric wires and cables . The said application was advertised in the Trade Marks Journal and opposition was filed by the appellants, M/s. Escorts Ltd. (for short escorts ).

( 2 ) IN the opposition the Escorts pleaded that it was incorporated under the Indian Companies Act in the year 1944. They are a large manufacturing concern and are manufacturing various types of machinery and electrical goods. They pleaded that they are the registered proprietors of the trade mark escorts in various classes for various types of goods manufactured by them, the details of which were given in para 2 of the notice of opposition. It was claimed that they bad been manufacturing some of those goods since 1951. The trade mark escorts under No. 202188 was registered on 1st May 1961 under clause 9 for electric flat irons and electric kettles and other class of goods mentioned in the certificate of registration. The registered trade mark No. 202190 registered on 1st May, 1961 besides others, included electric hearing elements, heating tubes, water heaters and other items mentioned in the certificate of registration. It was pleaded that the mark applied for, namely, ESCORT under No. 241605 for electric wires and cables is deceptively similar to their registered trade mark ESCORTS. Escorts further pleaded that the electric wires and cables are accessories to electrical goods and apparatus which they are manufacturing under their registered trade mark escorts . In short, they founded their opposition mainly on Sections 11 (a), (e), 12 (1) and Section 18 of the Trade and Merchandise Marks Act. 1958 (hereinafter REFERRED TO to as the act ). They also pleaded that the adoption of the mark by the respondent was not honest as their intentions were to trade upon the goodwill, reputation and name of the appellants. The mark was adopted in order to cause confusion in the market and deceive the public with a view to benefit from the reputation and goodwill of the mark escorts .

( 3 ) BY the impugned order dated 28th November, 1972 the Assistant Registrar dismissed the opposition and directed the registration of the trade mark. Escorts are in appeal against the said order.

( 4 ) WITH regard to the objection of the Escorts under Section 11 (a) of the Act, the Assistant Registrar has found the objection of the appellants to be maintainable. In other words, the Assistant Registrar has come to The conclusion that the use of the mark by the respondent is likely to deceive or cause confusion. The Assistant Registrar has also come to the conclusion that the respondents mark is deceptively similar to the appellants (ESCORTS) registered trade mark. It has also been found as a fact by the Assistant Registrar that Escorts were using their mark prior to the date of the filing of the application of the impugned mark by the respondents. The Assistant Registrar further recorded the finding that on account of great reputation acquired by the appellants mark the use of an identical or deceptively similar mark by another person is bound to cause confusion or the deception among the trade and the general public.

( 5 ) THE Assistant Registrar, in spite of the aforesaid findings, granted registration to the respondents as he found that the respondents goods, namely, electric wires and cables cannot be considered as goods of the same description. He rejected the contention of the appellants that respondents goods were allied goods. Consequently, the Registrar found that although the applicant s mark is deceptively similar to the opponent s trade mark, the goods in respect of which the registration is sought are goods

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