The use of a mark by a subsequent user, which incorporates the basic features of an existing mark, could not be said to be honest but where, as in the present case, numerous manufacturers were simultaneously using bird devices it is difficult to attribute dishonesty in the choice of such an extensively used device.

( 1 ) BY the appeal under Section 109 of the trade and Merchandise Marks Act, 1958 (hereinafter referred to as ("the Act") the applicants. M/s. Wattan Singh and Sons, challenged an order of the Assistant Registrar of Trade Marks, Delhi, accepting the application of the respondents M/s. Bakhtawar Engineering works, for the registration of their rival mark under section 12 (3) of the act. The appeal has been filed in the following circumstances.

( 2 ) ACCORDING to the appellants, they are engaged in the manufacture and merchandies of agricultural machinery, chaff cutter blades and their components and have been carrying on the business under the trade mark "do CHIRI" with the device of two birds since 1932 through their predecessor-in-interest and since 1937 by themselves. The mark was registered in 1949. The application of the predecessor-in-interest of the appellants for registration was then opposed on the ground that the then opponents had been using a similar mark based on the flying bird device. In the course of the proceedings, Jawala Singh, who was then a partner of the firm, and had appld for registration on behalf of the firm, filed an affidavit insupport of the claim lor registration. Inpart 11 of the affidavit Jawala Singh stated that several firms engaged in the manufacture of chaff cutting machine had been using trade marks consisting of flying birds without any objection even though all these marks based on the bird device had considerable resemblance with each other. He had furnished names of 20 firms who had been applying such marks in relation to the aforesaid manufacture which included M/s. Bakhtawar Engineering Works, respondents herein. In 1968, M/s. Bakhtawar Engineering Works, respondents herein, sought registration of a mark in relation to chaff cutting machine which consisted a label containing the device of two birds on a stem with the words. "two KABUTAR MARKA" on the allegation that this mark had been in use by the respondents since 1950. Opposition to the mark was entered on behalf of the appellants in 1959 and the registration of the rival mark was opposed, inter alia, on the ground that the appellants had been using their mark since the year 1932, had acquired a vested right in it since then on account of extensive use and publicity, that the registration of the mark of the respondents would becontrary to the provisions of section 2 (1) and II of the Act and their claim could not be justified with reference to Section 12 (3) of the Act. In their rejoinder the respondents claimed that they had honestly adopted the mark and had been using since 1920 and they were, therefore, entitled to the benefit of Section 12 (3) of the Act. The parties filed affidavit and documents in support of the rival contentions. It appears that meanwhile the appellants prosecuted the respondents on a complaint based on a charge of infringement of their trade mark. The trial Courts convicted the respondents, but the conviction was set aside by the High Court by the judgment which is reported as A. 1. R. 1974 Punjab and Haryana 116. On the motion of the respondents a copy of the judgment was allowed, to be placed on the record of the proceeding by the assistant Registrar. The affidavit of Jawala Singh was also allowed to be placed on record. The High court had returned the finding that use by the respondents of the mark sought to be registered, appeared to it to be both concurrent and honest.

( 3 ) BY his order of September 1, 1975, sought to be appealed against, the Assistant Registrar of trade marks rejected the opposition of the appellants and directed that the mark be registered under Section 12 (3) of the Act. In the course of the order the Assistant Registrar came to the conclusion that the rival marks were deceptively similar and that the claim for registration would, therefore, be hit by the provisions of section 12 (1) of the Act since both the marks related to the same product, namely chaff cutting machin