( 1 ) M/s Torrent Pharmaceuticals Ltd-original applicant-appellant-petitioners herein have filed this appeal against the judgment and order, dated 19. 8. 94 passed by the Assistant Registrar of Trade Marks-the respondent No. 2 herein wherein he has allowed the opposition No. AMD 425 filed by Welcome Foundation Ltd. (hereinafter referred to as "the opponent No. 1") and application No. 483813 in class 5 of Fourth Schedule of the Act is ordered to be refused for registration under the provisions of Trade and Merchandise Marks Act, 1958 (hereinafter referred to as "the Act" ).

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( 3 ) STATUTORY BACKGROUND:3. 1 the Trade And Merchandise Marks Act, 1958 (hereinafter referred to as "the Act") has been enacted to provide for the registration and better protection of trade marks and for the prevention of the use of fraudulent marks on merchandise. 3. 2 section 2 (1) (d) provides definition of "deceptively similar" means a mark shall be deemed to be deceptively similar to another mark, if it so nearly resembles that other mark as to be likely to deceive or cause confusion. 3. 3 section 2 (1) (j) provides definition of "mark" means mark includes a device, brand, heading, label, ticket, name, signature, word, letter or numeral or any combination thereof". 3. 4 section 2 (1) (p) defines "registered" means "registered under this Act". 3. 5 section 2 (1) (r) defines "registered the trade mark" means "a trade mark which is actually on the register". 3. 6 section 2 (1) (v) defines "trade mark" means-- (I) in relation to chapter X (other than s. 81) a registered trade mark or a mark used in relation to goods for the purpose of indicating or so as to indicate a connection in the course of trade between the goods and some persons having the right as proprietor to use the mark; and (II) in relation to other provisions of this Act, a mark used or proposed to be used in relation to goods for the purpose of indicating or so as to indicate a connection in the course of trade between the goods and some person having the right, either as proprietor or as registered user, to use the mark whether with our without any indication of the identity of that person, and includes a certification trade mark registered as such under the provisions of Chapter VIII. Chapter II provides for Register and Conditions for Registration. Chapter III provides for Procedure for and duration of Registration3. 7 Section 9 provides for requisites for registration in Parts A and B of the register. 3. 8 Section 11 provides for prohibition of registration of certain marks and reads as under:a mark-- (A) the use of which would be likely to deceive or cause confusion, or (B) the use of which would be contrary to any law for the time being in force, or (C) which comprises or contains scandalous or obscene matter, or (D) which comprises or contains any matter likely to hurt the religious susceptibilities of any class or section of the citizens of India, orwhich would otherwise be disentitled to protection in a court shall not be registered as a trade mark. 3. 9 Section 12 provides for prohibition of registration of identical or deceptively similar trade marks and reads as under: (1) save as provided in Sub. sec (3), no trade mark shall be registered in respect of any goods or description of goods which is identical with or deceptively similar to a trade mark which is already registered in the name of a different proprietor in respect of the same goods or description of goods. (2) where separate applications are made by different persons to be registered as proprietors respectively of trade marks which are identical or nearly resemble each other in respect of the same goods or description of goods, the registrar may defer the acceptance of the application or applications bearing a later date until after the determination of the proceedings in respect of the earlier application, and may dispose of such application or applications in the light of the evidence tendered i