The central legal point established in the judgment is the application of sections 11, 12, and 18 of the Trade and Merchandise Marks Act, 1958, in determining the registration of a trade mark and protecting trade names.

( 1 ) THIS first appeal under section 109 (6) of the Trade and Merchandise Marks Act, 43 of 1958, (hereinafter referred to as the Act ) has been filed by the appellants against the order of the Assistant Registrar, dated 26th August, 1970, by which he has ordered the removal of the trade mark of the appellants (No. 217016b) dated 7th August, 1963, on the grounds that it offends sections 11 and 18 of the Act.

( 2 ) THE material facts of the case are that the appellants, namely, Jugmug Electric and Radio Company claiming to be manufacturers of electric heaters, immersion heaters (electrical), hot plates for cooking, electric toasters, table lamps, heating apparatus and parts of the aforesaid goods, applied for registration of their trade mark "telerad", which was granted by the impugned mark mentioned above. The respondents, who are Telerad Private Limited had their own trade mark registered under No. 181813 and 195883 in respect of Radio and television as "telerad", opposed the registration of the mark, but failing to file the opposition in time, the respondents applied in October, 1964 for rectification of the register and removal of the impugned trade mark of the appellants. The respondents contended that the impugned trade mark contravened sections 11, 12 and 18 of the Act and so must be removed from the register. The Assistant Registrar by the impugned order found that the respondents before me were the persons aggrieved. He also found that the nature and characteristics of the respective sets of goods were totally different and their manufacturers were also different and so the goods were of a different description. He repelled the contention of the respondents that the registered trade mark contravened section 12 (1) of the Act. He, however, concluded that the same contravened sections 11 and 18 of the Act and the appellants were not entitled to concurrent registration under section 12 (3) of the Act. So he exercised the discretion and ordered the removal of the mark.

( 3 ) MR. Anoop Singh appearing to assail the order has contended that the respondents had no locus standi to file the petition for rectification, since they had failed to file the opposition in time and that the Assistant Registrar had erred in recording his finding regarding 11 of the Act after he had held that the goods were different.

( 4 ) MR. Anoop Singh, counsel for the appellants has cited a large number of authorities to show that if the goods were different, similarity in the trade mark does not call for refusal of registration. In Darnell (J) and Son Ld s application for a Trade Mark, (1957) RPC 177 (1), the trade mark of "boots, shoes and slippers" was held not contravening similar trade mark of "stocking and socks". In the Matter of an Application by Ladislas Jellinek for the Registration of a Trade Mark, (1946) 63 R. P. C. 59 (2), the trade mark of shoes was found as not contravening the trade mark for shoe polish. In Thomas Bear and Sons (India) Ld. v. Prayag Narain and Jagennath, (1941) 58 R. P. C. 25 (3), the trade mark of chewing tobacco was found as not contravening the trade mark for cigarettes. In the matter of an Application by J. and J. Colman, Ld. to Register a Trade Mark. (1929) 46 R. P c. 126 (4), semolina and mustard were found to be different goods. In Lifeguard Milk Products Proprietary Ld s case, 1957 R. P. C. 79 (5), tea and milk and milk products were found to be different. In Lever Brothers, Port Sunlight Ld. v. Sunniwite Products Ld. (1949) 66 R. P. C. 84 (6), Sunlight and Sunniwite were found to be different. In Nekumar K. Porwal v. M/s. Mohanlal Hargovindas, AIR 1963 Bombay 246 (7), it was found that the grievance of the party aggrieved must be substantial and not sentimental. In London Rubber Co. Ltd. v. Durex Products Incorporated, AIR 1963 SC 1882, at 1885 (8), the registration of contraceptives for men were found as not similar to the registration of contraceptives for women.

( 5 ) I have carefully con