Judgment

A. K. SARKAR, J. : This appeal arises out of an application made under the Trade Marks Act, 1940, hereinafter called the Act, for registration of a trade mark. The application was made by the respondent and it was opposed by the appellant.

2. The respondent is a manufacturer of biscuits. On November 5, 1949, it made the application for registration of the mark Gluvita in respect of the goods specified in class 30, which mark, it appeared later, it had not used prior to that date. The Registrar ordered the application to be advertised before acceptance on the respondent s agreeing to limit the registration to biscuits only which were one of the classes of goods specified in class 30.

3. The appellant is a corporation organised under the laws of the State of New Jersey in the United States. On August 31, 1942, it had registered the mark Glucovita under the Act in class 30 in respect of "Dextrose (d-Glucose powder mixed with vitamins), a substance used as food or as an ingredient in food; glucose for food." On the same date the appellant had also registered the same trade mark in class 5 in respect of "Infants and invalids foods".

4. The appellant opposed the respondent s a