Despite mark only a geographical name having no distinctive character.

JUDGEMENT :- This appeal is directed against the dismisal of an application filed by the appellant under Section 56 of the Trade and Merchandise Marks Act for rectification of the register by removing the trade mark No. 164933 or by deleting from the said mark the words 'Thennamarakkudi oil.'

2. The facts as set out in the application for rectification are as follows :-

The appellant's father Santhanakrishna Naidu started, in or about the year 1918, a business in the manufacture and sale of a medicinal oil preparation for curing sprains, and fractures under the name and style of R.S. Krishna and Co. In order to distinguish his goods from that of the other merchants the appellant's father adopted mark consisting of a device in which the word 'Thennamarakkudi oil' formed an essential part. The appellant's father, and, after his death, the appellant have been continuously using the said mark on the tins of the medicinal oil prepared and sold by them. The mark adopted by them for their goods had been registered in the name of appellant's father under No. 89873 and a certificate of registration dated 4-3-1949 has been issued. After the appellant's father he has been continuing the business as sole proprietor and using his mark on the oil manufactured by him. In or about October 1952, the first respondent company has been using a similar trade mark in the medicinal oil preparations with the same name.

The appellant issued a lawyer's notice dated 7-10-1952, apprising the first respondent about his prior user of the mark by his father and about the registration of the same. The first respondent by his reply dated 13-10-1952 promised to take steps to effect the changes in the mark but, however, without effecting any change in the mark it has been selling medicinal preparations of 'Thennamarakkudi oil.' Subsequently, he came to know that the first respondent had also registered his mark as No. 164933 in pursuance of an application made on 12-7-1954. Hence the appellant had to file an application for rectification of the register on the ground that the mark containing the words 'Thennamarakkudi oil' registered by the first respondent is a clear infringement of his mark and its user by the first respondent is likely to cause deception or confusion in the minds of the purchasing public.

3. The said application for rectification was resisted by the first respondent contending that 'Thennamarakkudi' is a village in Nannilam taluk in Thanjavur district, where a family of native physicians began to manufacture such oil preparations and sell it to the public more than half a century ago, and their preparation took its name from the village, that in view of the popularity of that oil several merchants in Thennamarakkudi, Mannargudi, Mayuram, Kumbakonam and other places in Thanjavur district, have been selling the medicinal oil as Thennamarakkudi oil, and that, the said word is no distinctive of the medicinal oil prepared and sold by the respondent.

4. The Assistant Registrar of Trade Marks dismissed the application for rectification by his order dated 22-5-1961 on the ground that the appellant had not adduced any evidence of the distinctiveness of the word 'Thennamarakkudi' as postulated under Section 9 (2), that there was no evidence to show that there was a quality in the word 'Thennamarakkudi' which earmarked the appellant's goods as distinct from those of other producers of such goods, that the appellant cannot have a monopoly to the word in question and that in the absence of such a monopoly he cannot prevent other persons from using that word.

5. The appellant took the matter in appeal. Venkatadri J. dismissed the appeal holding that the application for rectification has rightly been refused by the Assistant Registrar of Trade Marks as 'Thennamarakkudi' was a geographical name in which none can acquire a trade mark. The matter was taken further in Letters Patent appeal by the appellant in L.P.A. No. 66 of 1965. On the ground that the ap