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High Court Of Delhi
LAKHPAT RAL SAMPAT RAI SADH - Appellant
Versus
DHANPAT RAL GOEL - Respondent
First Appeal Order 83D of 1965
Decided On : 02/22/1973
TRADEMARK - RECTIFICATION OF REGISTER - SECTION 56(2) OF THE TRADE AND MERCHANDISE MARKS ACT, 1958 - SIMILARITY OF TRADEMARKS - DECEPTIVE SIMILARITY - LIKELIHOOD OF CONFUSION - DISTINGUISHABILITY - DEVICE OF BAMBOO GROVE - DISCLAIMER.
Fact of the Case:
The appellants, manufacturers of an ayurvedic tonic named "banslochan," sought rectification of the register to remove or vary the respondent's registered trademark, which consisted of a pictorial device of a bamboo grove and the word "banslochan." The appellants claimed that their trademark, which also featured a bamboo grove device, had acquired distinctiveness and reputation in the market.
Finding of the Court:
The court held that the respondent's trademark was deceptively similar to the appellants' trademark and was likely to cause confusion among consumers. The court found that the pictorial device of a bamboo grove was distinctive and capable of making an impression on the minds of customers, who were likely to be misled into thinking that the respondent's goods were those of the appellants.
Issues: 1. Whether the device of a bamboo grove is descriptive or distinctive. 2. Whether the respondent's trademark is deceptively similar to the appellants' trademark. 3. Whether the disclaimer of the device of a bamboo in the appellants' trademark registration barred them from seeking protection for their device of a bamboo grove.
Ratio Decidendi: 1. The court held that the device of a bamboo grove is distinctive and not merely descriptive of the goods, as it conveys a distinguishing idea and is capable of making an impression on the minds of customers. 2. The court found that the respondent's trademark, which also featured a pictorial device of a bamboo grove, was deceptively similar to the appellants' trademark and was likely to cause confusion among consumers. The court noted that the monogram "bbc" prominently displayed in the respondent's trademark was not sufficient to distinguish it from the appellants' trademark. 3. The court held that the disclaimer of the device of a bamboo in the appellants' trademark registration did not bar them from seeking protection for their device of a bamboo grove, as the disclaimer only applied to the device of a bamboo and not to the device of a bamboo grove.
Final Decision: The court allowed the appellants' appeal, set aside the order of the Assistant Registrar of Trade Marks, and granted the appellants' application for rectification under Section 56(2) of the Act. The court ordered the entry in the register relating to the respondent's registered trademark to be varied by deleting the device of a bamboo grove.
( 1 ) THIS appeal under Section 109 of the Trade and Merchandise Marks Act, 1958 (hereinafter called the "act)" is directed against the order of the Assistant Registrar for Trade Marks, New Delhi, by which he dismissed the application of Messrs Lakhpat Rai Sampat Rai Sadh (herein called the "appsllants") under Section 56 (2) of the Act for rectification of the register in respect of entry relating to the registered trade mark No. 186774 in class 5. registered in respect of "banslochan", an ayarvedic medicine, in the name of Dhanpat Rai Goel (herein called the "respondent * ). Rectification was sought wither by expunging the entry relating to the registered trade mark No. 186774 registerad as of September 5, 1958, or by varying it by deleting the device of "bamboo grove" and word "banslochan" appearing in the mark.
( 2 ). According to the facts, as found by ihe Assistant Registrar of Trade Marks and about which there is no dispute, the appellants claim to have been manufacturing and selling for more than 75 years an ayurvedic tonic for health named "banslochan" prepared from the extract of a particular kind of bomboo. They are the proprietors of registered trade Mark No. l48579 in class 5 in respect of "banslochan" consisting of a pictorial device of a jungle or grove of bomboos with the words "bans Ka Jungle" and Asal Banslochan". The pictorial device of a bomboo grove, clamed to be an artistic display of bomboos, was adopted by them in 1945. Since they have been continously and extensively using lbe said trade mark in respect of their goods. The value of their "banslochan", sold under the said trade Mark, amounted to several lacs of rupees every year and they had been speading on its publicity over Rs. 10,000/ a year They have been recognised as the oldest and most relaible manufacturers of "banslochon". They sell these goods in tin containers with the labels bearing their aforesaid trade mark which has acquired high reputation in the market. The appellants do not claim exclusive right over the use of the word "banslochan", being the name of the goods itself or over the device of a bamboo, which is descriptive of the goods. Their trade mark was registered subject to the disclaimer that it shall give no right to the exclusive use of the device of a bomboo.
( 3 ) THE Assistant Registrar observed that from visual aspect, tbe device of bamboos forms the most prominent feature of the appellants trada mark. The first impression formed in a purchaser mind, according to him, would, ha all probability, be that of a jangle of bomboos. The words "bans ka Jungle" in Hindi script, printed in small type under the said device, according to him, formed the real feature of a trade mark value of this mark. He was of the opinion, that some at least of the consumers might be referring to the appellants goods by the name, "bans ka Jungle Banslochan. " The respondents started selling "banslochan" packed in tin containers with a table displaying the impugned trade mark conslsting of the pictorial device of a bomboo grove more or less similar to that of the appellants. " with a monogram consisting of letters "bbc", placed at the foot and covering a small part of the said device.
( 4 ) IT has been argued by Mr. N. K. Anand, learned counsel for the respondent, which argument was also adopted by the Assistant Registrar, that "banslochan" being an extract prepared from bamboos, the cluster or the grove of bamboos is merely descriptive of the goods and has no distinctive character. The customers in general would be aware of this and would, therefore, not attach much trade mark significance to the device of bamboos. They may either look to the proprietors name or to some other words or feature by which the trade mark can be remembered. On the other hand, the display of monogram " BBC" in the respondents trade mark, said Mr. Anand, is so prominent that it attracts the attention of the customers This monogram, it was claimed, distinguishes
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