Veeravagoopillai V. Saibo Et Al.,

1934 Present: Garvin S. P. J. and Akbar J.

VEERAVAGOOPILLAI v. SAIBO et al.

85-D. C. (Inty.) Colombo, 2,033.

    Trade mark-Application to register mark resembling respondents' trade mark-Test to be applied in determining question-Whether ordinary purchasers are likely to be misled-Burden of proof.

 The appellant applied for the registration of a trade mark, in respect of flour, called the Hanumar brand consisting of the figure of a monkey in a standing position. The respondents had registered a trade mark in 1913, also in respect of flour, called the Pahlwan, consisting of a strong man in a standing position holding up a pair of dumb-bells. Respondents' trade mark was known in the trade as the man mark.

Held, that the trade mark proposed by the appellant so nearly resembled the respondents' as to be calculated to deceive the public.

Held, further, that in the circumstances, the burden was on the appellant to satisfy the Court affirmatively that his mark was not calculated to deceive.

APPEAL from an order of the District Judge of Colombo.

A. E. Keuneman (with him Choksy and D. W. Fernando), for applicant, appellant.

H. V. Perera (with him Garvin), for opponents, respondents.

Cur. adv. vult.

December 4; 1934. AKBAR J.-

This is an appeal from an order of the District Judge disallowing the application of the appellant to register a trade mark bearing No. 5,598 called the " Hanumar " brand consisting of the figure of a monkey in a

standing position in respect of flour. The application was opposed by the respondents on the ground that the applicant's trade mark so nearly resembled their registered trade mark No. 1,048 also in respect of flour as to be calculated to deceive the public. This latter trade mark was registered so far back as 1913 and consisted of a strong man in a standing position holding up a pair of dumb-bells in his extended hands and was called the " Pahlwan" brand (the word Pahlwan meaning a champion -wrestler or strong man in Hindustani). On opposition before the Registrar the application of the appellant was allowed, but on appeal to the District Judge the Registrar's order was reversed and order was made refusing the registration of the appellant's trade mark.

Evidence has been put in in the form of affidavits and it is clear from the respondents' affidavits that they were doing a large business in flour both wholesale and retail and that their trade mark had come to be known as " the man mark ". No evidence has been put in to the contrary, and the respondents' evidence on these two points has been accepted by the Registrar and , the District Judge. The Registrar held against the respondents because he was of opinion (1) that the designation "man mark" used by the public was not a correct description of respondents' trade mark which was registered as " the Pahlwan mark ", and (2) that the two trade marks were readily distinguishable, as appellant's figure has hair over body and a tail.

As regards the first point mentioned by the Registrar, in a case reported in 53, L. T., N. S. (1885) p. 23, a firm of distillers registered as a trade mark for their cherry brandy a hunting scene in connection with the word "Sportsman" and their cherry brandy consequently became generally known as "The Sportsman's" and also as "Huntsman's" and "Hunters" Cherry Brandy. Some years afterwards another firm of distillers registered a trade mark also consisting of a hunting scene and the words " Huntsman's cherry brandy ", but there was no resemblance between the two hunting scenes. It was held that notwithstanding the dissimilarity in the designs the latter trade mark was " calculated to deceive". Kay J. said as follows:-"I must take it as clearly established that before the defendants registered their trade mark the plaintiffs had acquired quite generally the name of ' Huntsman's Cherry Brandy' for their brandy. I have very little dif

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