LexK. R. CHINNA KRISHNA CHETTIAR versus SRI AMBAL & CO., MADRAS & ANR.
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
K. R. ClllNNA KRISHNA CHETIIAR
A
SRI AMBAL & CO., MADRAS & ANR.
April 14, 1969
[S. M. S1KRI, R. S. BACHAWAT AND V. RAMASWAMI, JJ.J
B
fr.,,!,· and Aferchtn11lise Mark'i Act. 1958, ss. 2(j) und 12-fn .. Yle
11u1rJ.:s 11·he11 deceprive/y 5in1ilcJr-'Sri Anda/' c111d 'Sri A111hc.1/' though ncmes
of Hro di,fjerent Jloddesst•s are dtceptil•ely sin1ilar in sound wi1hin meaning
of s. 12(J )·--Vi.~ual di\1i111ilarity not dt•cisire when sounds
decepti1•::ly
sin1ilar.
·rhc <tpp1.::l.1n~ was thl!
sol~ propric1or of .i concern known as Radha
& Co.
·1 he rco;pl1nd .. :nt~ Amhal & Co. were <1 partnership concern.
The
r"'-spondl'nl~ as
011~0 the appellant Y..'Crc n1a11uf11cturcrs and dealers in
snuff. c:1rryin!_.! on hu~illl'·,s ;1t
~ladras and having business activities inside
and l'l1f.;,ilic 1hc State of '.\l<tdras.
In 1958 the appellant sought rcgio;;tra-
tion of ,, rr . .HI~ n1.1rk c0nsis1in] of a L;hcl \\ith a picture of the godd~!'"
S~i r\nd1d ;1nd liic leganJ 'Sri Anda(' in th~ cc~ltra\ panel. and !he words
'Sri ,.<\nd.tl :\l.1dr;is Snuff' in \arious languages in the upper and Jower
panel.;.
The :1ppcll<1nt's appliciltion was ohjectcJ to hy the respondenl..;
on the ground
1h~.t it v.as deceptively similar to their registered
traU~
mark~. One of rhe'.ic consisted of a Jabel containing a device of goddess
Sri Amh<il in the centre \\·ith the legand 'Sri An1bal parimala snuff' at th!!
top of the lahcl and the name 'Sri Amhal & C:o. Madras' at the hottom.
·inc other trade mark
consi'.itcJ of
lhe
expre~sion 'Sri
Ambal'. The
Rc'!i')trar of TraJi.:
~lark.; hclJ th<it the sound of 'Ambal' did not
~')
!'e:i'rly re\Cmblc the sound of 'Andal' in
spite of certain
letters being
coinmon to both the ma'rko; as to be likely to cause confusion or deception
among a suh .. tanti•tl nun1hcr of persons.
A Single Jud~e of the High
(',ourt :ind the Di\·isional Bench however took the opposite view v.·h~re
opon th~ appellant came to thi'.'I Court. No pie~ of honest concurrent U!".e
within the meanin!? of s. 12( ~) of the Act could he raised in viev.· of the
concurrent finding in thi"i re,.peet hv the Rcj:!isrrar a!".
\\'Cl!
a.,
the
tv.·o
courts helov.·.
•IELD : ( i) Th~ Rei.:1strar had expert l...nov.·Jedge and his decision
shlHlld :iot he lightly disturbed.
But hath the courts had found that he was
clearly \\'rong and that there \\o·as deceptive similarity between the
two
marks.
In an appeal under Ari. 136 of the Constitution the onus was
upon the appellant to show that the concurrent finding dl the courts below
wa.; erroneous and 1hat the conditions of s. 12(1)
had
heen
satisfied
[293 FJ
(ii) The question in
i~uc was whether if the appellant's mark was
used in a normal and fair manner in connection with the snuff and if
similarly fair and nOrmal user was assumed of the exisring registered
marks, \viii there
be such a likelihood of deception that the mark ought
not to he allov.·ed to he re)Zistercd? The court had to decide the qu~stion
on a comparison of the competing marks as a whole and their distinclive
and es,.otial features. [291 H-294 BJ
So considered there could be no doubt that the word 'Amhal' was the
distinJruishing feature of the trade mark of the respondent and the word
'Andal' was the distinguishing feature of the appellant'o;; trade mark .. There
is a striking similarity and affinity of sound between the words 'Andal'
c
D
E
F
r,
H
K. R. CH!NNA v. AMBAL & co .. (Bachawat, J.)
29 I
A
and 'Ambal' Giving due weight to the judgment of the Registrar and
bearing in
mind the
conclusions of the Single Judge
and the
Divisional Bench it must be held that there was lreal
danger
of con-
fusion between the two marks. (294 B-C]
(iii) There was no visual resemblance between the t\.vo marks but
ocular comparison is not always the decisive test. The re~emblance between
the two marks must be considered with reference to the ear as \vell as the
B
eye. (294 DJ
·
(iv) The argument that on account of the different ideas conveyed
by the words 'Ambal' and 'Andal' the accidental .Phonetic resemblance
could not lead to confusion was not acceptable because it lost sight pf
the realities of the case. The Hindus in the South of India may be well
aware that the y,•ofds Ambal and Andal represent the names of two distinct
goddesses.
But the respondent's customers· \\'ere not confined to the
C
Hindus of the South of India alone and they were not likely to remExcerpt shown. Read the full judgment & AI analysis in Lexace.