The central legal point established in the judgment is that the use of descriptive words, distinct prefixes, and visual and phonetic differences are crucial in determining deceptive similarity of trade marks.

( 1 ) IN this appeal, challenge is made to the order dated 21st november, 2002 passed by the learned Single Judge dismissing the petition filed by the appellant herein. The appellant contends that he is trading in atta etc with the trade mark/name 'shakti Bhog" registered in the name of the appellant effective from 16th June, 1982 and that registration of the trade mark 'shiv shakti' with a device of 'trishul' and 'damru' in favour of the respondent No. 1 by respondent No. 2 - Assistant Registrar Trade Mark and upholding of the said order by the learned Single Judge was uncalled for and unjustified.

( 2 ) ON 30th October, 1990 respondent No. 1 herein filed an application for registration of the trade mark 'shiv Shakti' with a device of 'trishul' and 'damru' in Class-30 in respect of atta, maida and suji. The said application was in Class 30. It was also claimed that the respondent No. 1 had been using the said mark effective from 6th March, 1990. The said application was duly advertised whereupon, the appellant herein gave notice of their intention to oppose registration of the said trade mark on the ground that the respondent No. 1-applicant's trade mark/label is deceptively similar to that of the appellant.

( 3 ) THE Assistant Registrar of Trade Mark considered the said objections and contentions of the parties. However, on going through the records he observed that the use of the mark applied for by the respondent No. 1 had been substantial and that sales of the respondent No. 1 ran into crores of rupees per month. It was also held by the learned Assistant Registrar of Trade Marks that the respondent No. 1 applicant was using the mark applied for from the year 1990 continuously without any interruption and there has been no complaint or any confusion and deception till the aforesaid application for registration was filed. After considering various aspects and earlier precedences, the learned assistant Registrar of Trade Mark held that the mark consisting of the words 'shiv Shakti' with a device of 'trishul' and 'damru', applied for by the respondent No. 1-applicant would and could convey a different meaning than that of the mark 'shakti Bhog' of the appellant. It was also held that the device of 'trishul' and 'damru' pertain to Hindu God Shiva only and, therefore, the words 'shiv Shakti' with the aforesaid device are definitely distinguishable from the trade mark of the appellant, 'shakti Bhog'.

( 4 ) BEING aggrieved by the aforesaid findings and conclusions arrived at by the Assistant Registrar of Trade Mark, the appellant filed a civil Miscellaneous (Main) petition before the High Court which was considered by the learned Single Judge, who by order dated 21st November, 2002, dismissed the same holding that there is a lot of phonetic difference between the words 'shakti Bhog' and 'shiv Shakti' and that there could not be any confusion between the two trade marks of the appellant and the respondent No. 1. The learned Single Judge also held that 'shiv Shakti' with the device of 'trishul' and 'damru' certainly makes a difference for there is phonetic and ocular difference with the mark 'shakti Bhog'.

( 5 ) BEING aggrieved by the aforesaid orders, the present appeal has been filed by the appellant on which we have heard the learned counsel appearing for the parties. We have also perused the various documents placed on record and to which our attention was drawn by the learned counsel appearing for the parties.

( 6 ) ONE of the main submissions of the counsel for the appellant was that 'shakti Bhog' being the trade mark of the appellant and 'shakti' being essential feature of the said trade mark, there is intention of copying the essential feature of the appellant's mark 'shakti' by the respondent No. 1 and that being the position, the impugned orders are required to be set aside and quashed. It was also submitted that even assuming that the appellant's mark 'shakti' is descriptive, the same cannot