TWO TRADEMARKS ARE DECEPTIVELY SIMILAR IF THEY SO NEARLY RESEMBLE EACH OTHER AS TO BE LIKELY TO DECEIVE OR CAUSE CONFUSION.

Kailasam, C.J.

1. This appeal is preferred by Mettur Pharmaceuticals (P) Limited against the judgement of Ganesan J. in A.A.O. 369 of 1966, dismissing the appellant's application to register his trade mark.

2. The appellant made an application for registration of a trade mark consisting of the word "ASTHMIX" in Part A of the Register in Class 5 in respect of a designation of goods, which, after an amendment, reads as 'Pharmaceutical preparation for the treatment of Asthma'. A notice of opposition was lodged by the first respondent under Section 21 of the Trade and Merchandise Marks Act, 1958. The main grounds of opposition were that the opponents are the proprietors in India of the trade mark ASMAC registered under C1. 5 in respect of pharmaceutical preparation for the treatment of asthma, that by long and extensive user the said trade mark had become exclusively associated by the trade and the public in India with them and had acquired a great reputation, that the appellant's trade mark is deceptively similar to theirs, that the appellant's mark did not qualify for registration under Section 9 of the Act and that in view of the deceptive similarity, the appellant's application should be rejected.

3. The Assistant Registrar of Trade Mark found that there was a real tangible danger of confusion in the minds of the public. He also found that this is not a case where registration under Section 12(3) of the Act should be given. In the result, he dismissed the application with costs to the opponents.

4. On appeal by the appellant, Ganesan J, while finding that the marks are admittedly not identical, held that there was no visual similarity between the two competing marks and the phonetic test alone has to be applied to this case. In applying the phonetic test the learned Judge found that the persons who may be deputed for buying these medicines are mostly Indians and that their pronunciations of the English words are not likely to be perfect and proper and that these words are likely to be pronounced in various manners differing from State to State and from locality to locality depending upon the language used by the customers and their state of literacy. According to the learned Judge, the chances of confusion will be very little, but the customers are not likely to hail only from the group of literate persons well versed in English language. The learned Judge upheld the conclusion arrived at by the Assistant Registrar that the confusion among the public as regards the trade origin of these competing goods cannot be ruled out. He also held that the appellant is not entitled to registration under Section 12(3) of the Act. Agreeing with the Registrar, the learned Judge dismissed the appeal.

5. The appellant asked for registration of the mark consisting of the word ASTHMIX in Part A of the Register in Class 5 in respect of "Pharmaceutical preparation for the treatment of asthma." The appellant's medicine is packed in folders and bottles covered by a carton. The respondent's mark which consists of the word ASMAC is registered in Class 5 in respect of "Pharmaceutical preparation for the treatment of asthma". The packing is in a small carton consisting of 20 tablets, whereas that of the appellant is in folders consisting of ten tablets and in bottles for the liquid form. There is absolutely no similarity and no purchaser, whether intelligent or unwary, could mistake one medicine for the other. This is the finding of the Assistant Registrar, though not in such specific words. After discussing the question of similarity, the Assistant Registrar observed-

"At first blush, I thought that such an objection would not be available to the opponents." *

The learned Judge also found that the marks are admittedly not identical and there is no visual similarity between the two competing marks. We have no hesitation in accepting these findings and holding that there is no similarity whatsoever between the two products. It is also the admitted