Test to decide fraudulent intent.

JUDGMENT :- Petition under S. 56, S. 107 and 108, Trade and Merchandise Marks Act, 43 of 1958, for rectification of the Register of trade mark by cancelling the registration of the trade mark "Matulaies" adopted by respondents 1 to 3. The petitioners are reputed manufacturers of safety matches, and one of their trademark is "three mangoes" which they are using ever since 1934, on the packets and labels of the match boxes sold extensively in different districts of Andhra Pradesh and more particularly in the districts of Guatur, Krishna, Khammameth and Warangal. The first respondent is a proprietary concern of 2nd respondent, P. Muthiah Nadar, and the 3rd respondent, the joint owner of the trade mark "Matulaies" The complaint of the petitioners is that respondents 1 to 3, in or about 1959, conceived the idea of adopting the mark of "Matulaies" similar to that of the registered trade mark of three mangoes of the petitioners maliciously and with the intent .if causing wrongful loss to the petitioners. The case of the petitioners is that the mark of "Matulaies" adopted by respondents 1 to 3 is an obvious and colourable imitation of the trade mark of "three mangoes" and is calculated to deceive the eye of an unwary purchaser and equally others, resulting in confusion and deception in the minds of the purchasing public. The petitioners filed O. S. 1 of 1961 on the file of the District Court Guntur, against respondents 1 and 2 for infringement of their trade mark but during the pendency of the suit, respondents 1 to 3 got the trade mark "Matulaies" registered by the 4th respondent. The petitioners claim that the said registration is in contravention of the provisions of S. 12(1) of the Act and has to be expunged to maintain the purity of the register.

2. The case of respondents 1 to 3 is that the trade mark 'Matulaies' belonging to them is distinctively different from the trade mark of there mangoes" belonging to the petitioners, and that there is no infringement of the trade mark of the petitioners by respondents 1 to 2.

3. The learned advocate for the petitioners did not for a moment suggest that any confusion is likely to arise between the trade mark used by petitioners and the trade mark used by respondents 1 to 3. The word mark "Matulaies" which is tamil word for pomegranate cannot be confused with the word mark "three mangoes'" whether one sees the marks printed on the labels of hears the word marks when they are pronounced. The words are dissimilar : and it is not urged that there is any phonetic similarity between the words. The learned advocate for the petitioners rightly stated, even at the commencement of the hearing of the petition, that it is for the court to test the similarity of the trade marks and designs by com paring them. It is true that such comparison should not be made by having the labels of the petitioners and respondents 1 to 3 side by side because that is not what a customer does when he wants to purchase the goods of the petitioners. The following observations of a Division Bench of this court in Ebrahim Currim and Sons v. Abdulla Saheb, 65 Mad LJ 617 : (AIR 1934 Mad 226) clearly show how comparison of the marks should be made to test similarity of two marks :

"One has got to see whether an ignorant purchaser is going to be in the position of the court having the two things side by side and examine them critically. The purchaser probably trusts fu his recollection of one or a description of it that has been given to him, or seeing it in the shop window, goes to the person selling the infringement, who ex hypothesi does not give him the two the genuine one and the infringement to choose from."

4. A person who asks for "three mangoes" mark match boxes of the petitioner will not be given "Matulaies" mark match boxes of respondents 1 to 3. It is clear from the affidavits filed by both parties that the customers generally ask for matches without specifying the name of any particular brand and they rely upon