LexAMRITDHARA PHARMACY versus SATYADEO GUPTA
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1962 April 27, / - ~ >---;-- 484 SUPREME COURT REPORTS [1963)- AMRITDHARA · PHARMACY \ !), SATYADEO GUPTA -(S. K. DAS, Jl.1~ HmAYATULLAH and J.C. SHAH, JJ.) Trade Marlc--Likel!f to Recefre or Approach to determint-Acquiescence-E!fect · Act, 1940 (V. of 1940), ss.8, 10. cause conjusion- oj-Trat!e Marks The respondent applied for registration of the trade name ''Lakshmandhara'' in relation to the medicinal prepara- tion manufactured by him at Kanpur since 1923. It was. admitted that the respondent's product was mainly sold in the ,State of Uttar Pradesh .. The appellant opposed the regis- . tration on the ground that it had. an exclusive proprietary iriterest in the trade mark "Amritdhara ,,_in relation to a similar medicinal. preparation which had acquired considerable repu- tation since 1903 and that the respondent's trade· name "Lakshmandhara "- was likely to deceive and cause confusion and therefore the registration was prohibited by s; 8 ·of the Trade Marks Act. · The Registrar of Trade Marks held that there was suffi- . cient similarity between "Amritdhara' .and "L~shaman· dhara" so as to cause cOnfusion and it was likely to deceiv~the public; but the acquiescence of the appellant in the use of the trade name "Lakshmandhara" by the respondent in the rela- - tion to his product for a long period to the knowledge of the appellant was special circumstance under s. 10(2) entitling the respondent to have his name registered along with the appel- lant's trade name~ He, however, confined the registration to sales with the State of Uttar Pradesh. · Both the appellant and the respondent . appealed to the High Court which allowed the respondent's appeal holding that the words ''Amrit" and "dhara'' were common words in the Hindi language as also the wordS ''Lakshman" and "dhara" · and that there was no possibility of any Indian confusing the two ideas. The High Court further held there had been honest concmrent user by the respondent. o.n the question of acquiescence it held against the .respondent .. On appeal by special leave. Held, that the question whether a trade name is likely to- deceive or cause confusioi;i by its resemblance to another af .. ready registered is a matter of first iII?pres~ion and one for , decision in each case and has to be decided by taking an over- . all view of all the circumstances. The standard of comparison to be adopted in judgivg the resemblance is from the point of .. ,r-'. .... ' , -· 2 s.o.R. SUPREME COURT REPORTS 485 \ view of a man of average Intelligence and imperfect recollec- tion. Pianoti8t Oo.'s Application, (1906) 23 R. P. C. 774, referred to. " · Gorn Proaucts Refi11ing Oo., v. Bhangrila Fooii ProiiucllJ .Lta., (1960] 1 S .. c. R. 968, referred to. · Bela, further, that the two names as a whole should be considered for comparison and not merely the component 'ci, words thereof separately. William Bailey (Birmingham) Ltd.'s application, '(1935) 52 R. P. C. 137, referred to. Bei4, •also, that in the present case the similarity in the two name in respect of the same description of goods was ·likely to deceive or cause confusion; but the fact. found by the Registrar established the plea of acquiescence so a to bring the case within sub-s.(2) of s. IO, and the Registrar was right in imposing the limitation which he imposed. Crvn. APPELLATE JUBISDioTION: Civil Appeal No. 22 of 1960. Appeal by .special leave from the judgment and order dated March 19, 1958, of the Allahabad High Court in F. A. No. 62 of 1954. · S. N. .Andley, Rameskwar Nath and P. L. Vohra, ·for the appellant. · G. 8. Pathak, 8. K. Kapur, B. N. Kirpal a.nd Ganpat Rai, for the respondent. _, 1962. April 27. The Judgment of the Court was delivered by · S. K. D.A.s, J.-This is an appeal by special leave granted by · this Court on December 8, 1958. On July 19, 1950, Satya Deo Gupta, respondent before us; made an applioation under s. 14 of the Trade Marks Act, 1940 (Act V of 1 1940) (h~reinafter referred to as the Act) for regis- tration of the trade name of a biochemioal medici- nal preparation, commonly known as 'Lakshman- dhara', iri Class 5 of the Fourth Sohedule to the Trade 1961 --· ~ Phart1J<U7 •• Sai,ad10 Gupla AmritdMra Pha,..."'11 .. .>a~'° Gllf'l• DasJ. 486 SUPn.EME OOURT REPORTS [1963) Marks Rules, 1942. The applioation wae made by the respondent as the sole proprietor of Rup Bilu Company situate a
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