A common word cannot be registered as a trademark unless it has become distinctive of the applicant's goods through long user.

( 1 ) THIS appeal came up for hearing, before my Lords the Chief Justice and S. R. Das Gupta J. The learned Judges differed on certain points. In accordance with Clause 36, Letters Patent, the learned Judges stated the points on which they have differed. The points are the following: 1. Whether the word "rasoi", if and when used as a trade mark for the hydrogenated ground-nut oil manufactured by the appellant company, has a direct reference to the character or quality of the goods, within the meaning of Section 6 (1) (d), Trade Marks Act, 1940 and is, as such, outside the ambit of that clause?

( 2 ) IF the answer to the first question be in the negative, that is to say, if the true view be that the word "rasoi", when used as a trade mark for the appellant's oil, cannot be said to have such direct reference, must the mark be still proved to be distinctive in order to be eligible for registration, or should it be taken to be regarded as prima facie distinctive by the Act itself?

( 3 ) WHETHER, even if the word "rasoi", when used as a trade mark for the appellant's oil, can be said to have no direct reference to the character or the quality of the goods and even if its distinctiveless were to be taken as established, must the word be held to be still ineligible for registration, in view of the fact that it is a common word of the language of which no monopoly should be granted to any particular trader? 2. By a determination made by the learned Chief Justice on 4-2-1954 the case has been placed before me. 3. I shall now proceed to deal with the above points in the order stated above.

( 4 ) THE facts of this case have been fully" set out, if I may say so with respect, in the judgment of My Lord the Chief Justice and need not be restated.

( 5 ) I shall take the first point first.

( 6 ) IN order to answer the questions it is necessary to refer to the definition of the word 'mark' and 'trade Mark'. The word 'mark' is defined in Section 2 (1) (f) as including among other things a 'word'. The word 'trade Mark' is defined in Section 2 (1) (e ). Compendiously stated it is a "mark" used or proposed to be used in relation to goods for the purpose of indicating or so as to indicate a connection in the course of trade between the goods and some person having the right to use the "mark".

( 7 ) SECTION 6 (1) of the Act provides that a trade mark shall not be registered unless it contains or consists of at least one of the several particulars specified in Clause (a) to (e) of the sub-section. The sub-section is couched in the negative form. Its effect is that in order to be eligible for registration a mark most contain at least one of the particulars so specified. In other words, the absence of any one of the particular will disqualify the mark for registration though the presence of any one of them will not, ipso facto, make the mark eligible for registration. Sections 8, 9, 10 and 14 (1) lay down certain other matters which may be taken into consideration in directing registration of a trade mark.

( 8 ) THE first question which I have already quoted depends on the true view of Section 6 (1) (d) of the Act which provides that a trade mark shall not be registered unless it contains or consists of one or more words having no direct reference to the character or quality of the goods'. I shall first construe the clause and then discuss the cases which had been cited before me. The mark in respect of which registration has been applied for is the word "rasoi. " Section 6 (1) (d) will apply if the word "rasoi" has no direct reference to the character or quality of the goods in question which are hydrogenated ground-nut oil. The word "rasoi" has a variety of meanings The Deputy Registrar of Trade Marks has collected from different dictionaries the various meanings of the word "rasoi". They are cook-room, kitchen, cooking, cookery, cooked-food. In considering whether a mark has reference to the character or quality of the goods, the mark