( 1 ) THIS is an appeal from the judgment and order of P. B. Mukharji, J. (as his Lordship then was) dated May 24, 27 and 28, 1968 in an appeal under Section 109 of the Trade and Merchandise Marks Act 1958 (hereinafter referred to an the said Act ). By that judgment the order of the Registrar of Trade Marks dated March 26, 1968 rejecting the application for registration of a trade mark filed by the Imperial Tobacco Company of India Ltd. in Part A of the Register or alternatively in Part B of the Register, was affirmed. The trade mark for registration is a label, used as wrapper of packets of cigarettes bearing the device of snow clad hills in outline with the word 'simla' written prominently in various panels of the label with small inscription that the content is 'a product' of the applicant company. The application had been made for registration of the trade mark in class 34 in respect of manufactured tobacco. In course of hearing of this appeal, an application has been filed stating that the name of the appellant has since been changed to I. T. C. Ltd. under the provisions of the Companies Act, 1956 and accordingly name of the applicant has been amended to read as "i. T, C. Ltd. " by order of this court and the cause title has been directed to be amended in consequence.

( 2 ) THE appellant filed an application on April 20, 1960 for registration of the said trade mark in Part A of the register stating that the said trade mark was 'proposed to be used' in respect of manufactured tobacco in class 34. The Registrar of Trade Marks sent a reply on December 9, 1960 to the following effect:". . . . . Word 'simla' which forms the essential and distinguishing feature of the mark is a famous geographical name and is not registrable except on very strong evidence of distinctiveness. No such evidence is possible as the mark is proposed to be used. You should therefore show cause why the application should not be refused. . . . . "

( 3 ) BY its letter dated July 17, 1963 the appellant withdrew the application and on the same date filed a fresh application for registration of the same trade mark in class 34 in respect of manufactured tobacco. It was stated therein that during the period from April 1960 to June 30, 1963, about 42 crores of such cigarettes under the said trade mark had been sold throughout India while Rupees 15. 50 lakhs had been spent as advertisement costs, the value of cigarettes sold being Rs. 1. 14 crores. In support of the application the appellant also filed 22 affidavits from consumers, dealers and shopkeepers throughout the country to establish that the trade mark had in the meantime acquired distinctiveness and further, it appears the cigarettes have been in continuous use since then.

( 4 ) THEREAFTER there was a hearing of the application before the Deputy Registrar of Trade Marks, Calcutta and by letter dated December 29, 1965 issued by the Asstt. Examiner of Trade Marks the appellant was informed that the materials on record and arguments advanced on its behalf were duly considered by the Deputy Registrar and the said application for registration of the trade mark either in Part A or Part B of the Register had been refused by him.

( 5 ) THE Deputy Registrar forwarded grounds of his decision under Section 18 (6) of the Act dated March 28, 1966 to the appellant on its requisition. Against this decision, the appellant preferred an appeal to this Court under Section 109 (2) of the Act which was heard by P. B. Mukharji J. and was dismissed as already stated. Thereafter the appellant preferred a further appeal to the Bench of this Court under Section 109 (5) which has been heard by us.

( 6 ) THE Deputy Registrar who heard and considered the application held that though the trade mark is composite in character, its essential feature was 'simla'. 'simla' in its only and obvious signification is a well known geographical name and the chief town of a State and further the word 'simla' was inher