The likelihood of confusion or deception is the primary test for determining whether a trademark is registrable under section 11 (a) of the Trade and Merchandise Mark Act 1958.

( 1 ) THIS is an appeal under section 109 of the Trade and Merchandise Marks Act, 1958, against the order dated 9th July, 1963, passed by Assistant Registrar of Trade Marks.

( 2 ) ON 27th July, 1960 Bridgestone Company (Private) Ltd. New Delhi (hereinafter REFERRED TO as the appellant-company) made an application No. 197143 B for registration of a trade mark in para "a" of the Register in clause (12) in respect of a specification of goods which when subsequently amended read as bicycles and parts thereof included in clause (12), but not including rubber tyres and tubes . The mark consisted of the word bridgestone . The appellant-company claimed to have used the mark since 1st July 1960. On the examination of the application in the Trade Mark Registry, an objection was taken that the mark was not registerable in para a of the Register. Subsequently at the request of the appellant-company the application was converted to one for registration in part b of the Register. It was thereafter advertised as such in the Trade Marks Journal dated 1st May 1961. On 24th July 1961 M/s. Bridgestone Tyre Company Ltd. of Tokyo, Japan filed a notice of opposition. The Assistant Registrar, Trade Marks after observing that the only issue requiring decision in the case was whether section 11 (a) was not a bar to the registration of the mark of the appellant-company, upheld the objection and refused the application of the appellant-company. The principle question for consideration is whether the appellant-company was entitled to registration of the mark in view of section 11 (a) of the Trade and Merchandise Mark Act 1958. The sole criteria requiring determination for decision on this question is the likelihood of deception or confusion. The test generally adopted is whether, having regard to the use made of the objector s mark and the inference to be drawn from its use, confusion is likely. Confusion may arise (1) as to the marks themselves, visual or phonetic or (2) as to the origin of the goods. Confusion as to the trade source may arise where the two marks are identical even though the goods on which they are used are not the same but only closely related. For instance, a use of similar trade mark with respect to spirits on the one hand and wine on the other may lead to a confusion because the public might be induced to believe that the commodities have a common origin. A similar situation may arise where the goods are identical and the marks have points of similarity. In the present case the opposition by the respondent was based on the ground that they had acquired reputation with respect to mark bridgestone on rubber tyres and tubes and if the appellant-company s mark is registered with respect to bicycle and parts thereof not including rubber tyres and tubes , there is every likelihood of ordinary persons entertaining reasonable doubt that the goods of the appellant-company owe their origin to the respondent-company. It is true that it is not necessary, in order to find that a mark offends against section 11, to prove that there is an actual probability of deception lending to a passing off. It is sufficient if the result of user of the mark be that a number of persons are caused to wonder whether it might not be the case that the two products come from the same source.

( 3 ) IT is, therefore, necessary to consider whether the respondent- company has established their reputation with respect to their goods. If it be held to have established a reputation with respect to heavy duty tyres and tubes it may not be sufficient, in my view, to carry them through. The Court has to be satisfied not merely that there is a possibility of confusion but that there is a real tangible danger of confusion by registering a mark sought to be registered. Establishing trade reputation with respect to heavy duty tyres and tubes would not, in my opinion, be sufficient because bicycle parts other than tyres and tubes can neither be said to have t