Two trademarks will not be considered confusingly similar if they are dissimilar in their first two syllables and have a common suffix that is not distinctive.

MAHARAJAN, J. :- This Letters Patent Appeal is directed against the judgment of Ganesan, J. in C. M. A. 278 of 1966 and arises under the following circumstances. The appellant which is the Mount Mettur Pharmaceuticals Ltd., applied to the Assistant Registrar of Trade Marks, Madras, for the registration of its trade mark 'Utogynol' in Part A of the Register in clause 5 in respect of goods which are designated as 'medicinal preparations'. This application was opposed by the respondent, Ortho Pharmaceuticals Corporation, who had registered its trade mark 'Ortho-Gynol' in India in May 1943, in respect of the same type of goods, viz., medicinal preparations. The main ground of the opposition was that the appellant's trade mark so nearly resembles the respondent's that it is likely to cause confusion and deception within the meaning of Section 12 (1) of the Trade and Merchandise Marks Act, 1958. The Assistant Registrar upheld the respondent's objection and refused to register the appellant's trade mark. The appeal filed by the appellant against the order of the Assistant Registrar was disposed of by Ganesan, J. It is against the dismissal of the appeal that the present Letters Patent Appeal has been filed.

2. The contest is between the trade name 'Ortho-Gynol' of the 1st respondent and the trade name 'Utogynol' of the appellant. First, we will take the two words and judge them with reference to their look and their sound. Each of those trade names consists of four syllables, the last two of which, Gynol are common. The word Gynol does not appear to be a peculiar invention of the respondent-company. 'Gyno' according to the Concise Oxford Dictionary means 'ovary'. It is a shortened form of Gynaeco, which is derived from a Greek word meaning women. The addition of the letter 'L' to 'Gyno' seems to have been effected in accordance with the trade fashion as exemplified by numerous drugs like 'Dettol', 'Glysol', 'Ferodol' etc. In fact, the appellant's counsel has filed a list before us containing as many as 61 medicinal preparations manufactured by standard companies ending with the letters 'OL' out of which 44 end with 'Nol'. The expression 'Gynol' cannot therefore be said to be an invention, and consequently, the exclusive property of the first respondent.

3. There being nothing distinctive about the word 'Gynol' we shall examine if there is any similarity between the first two syllables of the two trade names - 'Ortho-gynol' and 'Utogynol'. Orthographically and phonologically .'Ortho' and 'Uto' are strikingly dissimilar and even making allowances for the mispronunciation of illiterate customers and the illegibility of Doctors' prescriptions, we think there is little likelihood of any confusion between these two words. The word 'Ortho' is not an invented word. It is found in the dictionary and is derived from a Greek word. The meaning of this word is 'straight, rectangular, upright, right, correct etc.' on the other hand, the word 'Uto' in the appellant's trade mark appears to be an invention. It is not found in the Concise Oxford Dictionary or in the Chambers's Dictionary. But in Webster's Third New International Dictionary Uto-aztecan is found and the meaning of it is given as 'a language phylum comprising the Nahuatlan, Taracahitian, Piman and Shoshonean families'. We do not think that the appellant should have borrowed this, word from Uto-aztecan. He must have invented it for the purpose of suggesting uterus, as his medicinal preparation is intended to be used orally as a uterine sedative. Doctors, who prescribe these medicines, can be depended upon to draw the distinction between 'Ortho-gynol' and 'Uto-gynol'. Patients, who resort to these ultramodern medicines, usually belong to the educated class, who can easily distinguish between these two words. The Registrar seems to think that illiterate Indian women may confuse the one with the other. It is difficult to imagine that illiterate Indian women would have the ability to