A. Subbulakshmy, J.:— On 18.7.1973, the applicant filed an application under Section 18(1) of the Act bearing No. 289498 for registration of a trade mark consisting of a device of boat and word “Boat” in Class 34 for a specification of goods which read as “safely matches”. The said application was advertised in the trade marks journal on 1.1.1980
2. The opponent Wimco Limited filed notice of opposition for registration of the applicant's trade mark “Boat” stating that the opponents is carrying on an old, established and reputed business in the manufacture and sale of safety matches under a distinctive trade marks consisting of the word ship and the device of a ship registered as trade mark Nos. 6858 and 6859, and so they are the proprietors to the trade marks comprising the word and the device ship for safety matches and the impugned mark is deceptively similar and the goods covered under the registration are also similar and so, the registration of the impugned mark is prohibited by the provisions of Section 12(1) of the Act. The opponent further contends that the registration of the impugned mark is prohibited by the provisions of Sections 11, 12(3), 19 and 18(1) of the Act. On enquiry conducted, the Assistant Registrar of the Trade Marks allowed e opposition and refused registration of the trade mark of the applicant.
3. Aggrieved against that order, the present appeal is filed by the applicant.
4. In this appeal, the appellant contends that the mark applied for registration by the appellant is different from that of the respondents mark, the appellant's trade mark is Boat Safety matches while the first respondent's trade mark is known as Ship Safety matches and the colour scheme is also different and the device Boat and Ship are also different and so, there is no resemblance between the applicant's trade mark and the opponent's trade mark and so, the application of the appellant for registration of the trade mark has to be allowed.
5. The Counsel for the appellant pointed out that both the trade marks Boat and Ship are not similar and they are distinct and the registration of the trade mark is not barred under Sections 9, 11, 12 and 18 of the Act. Appellant's trade mark is Boat and the respondent's is ship. On a perusal of the devices, they both appear to be similar.
6. The Counsel for the appellant pointed out that there are vast difference in the devices in the shape of boat and the ship. But, these devices have to be noticed so meticulously and by observing these trade marks for a while. Immediately on perusing the device, an ordinary illiterate common man cannot distinct them so easily. The goods involved in both the marks are the same i.e, safety matches. Even though the word boat and the ship are mentioned in those labels, the devices appear to be similar. Merely on seeing it, it cannot be distinguished so easily.
7. The Counsel for the appellant draw my attention to the Chamber's Dictionary meaning for the word Boat and Ship. Boat means a small open vessel or water craft propelled by oars. So, he points out that Ship and Boat are entirely different and they will not cause confusion and deception. He further pointed out that the shape of the Ship and Boat is also different and so, the impugned mark is not deceptively similar.
8. The Counsel for the respondent pointed out that the trade marks are similar and the boat or the ship as the case may be is found as shipping vessel and the goods are also of the same safety matches and so, these trade marks will certainly cause confusion in the minds of the common people and especially among the illiterate.
9. On a perusal of both the marks, it is seen that in both the marks the boat and ship appears as sea-going vessel. So, from features, it is clear that they are deceptively similar. As per Section 9 of the Act, the trade mark which is to be registered should contain a distinctive mark. As per Section 11 the mark which is likely to deceive or cause confusion is prohibited for registration. Section 12 prohibits the registration of identical or deceptively similar trade marks. Since the features of the impugned mark of the appellant is similar to the features of the trade mark of the respondent and as these trade marks relate to the same goods, it is clearly barred under Sections 9, 11 and 12 of the Trade Marks Act, Section 2(1)(d) of the Act defines deceptive similarity. A mark shall be deemed to be deceptively similar to another mark if it so nearly resembles that other mark as to be likely to deceive or cause confusion. As the trade marks Boat and Ship appear to be sea-going vessels, the applicant has to prove that the mark if registered will not lead to confusion or deception. The applicant has not discharged his burden of proof. So, it can be safely concluded that the impugned mark is deceptively similar to the trade mark of the respondent and if it is registered, it would cause confusion and deception. The decision Balaji Chettian v. Hindustan Lever Ltd. . AIR 1967 Mad. 148., states that.
“Trade and Merchandise Marks Act (1958), Sections 18, 2, (1)(d) and 109— Application for registration of trade mark. Burden of proving that mark is entitled to registration is on appellant—Burden heavier when Registrar in exercise of discretion concludes that mark is deceptively similar to opponent's mark— Unless Registrar is clearly wrong in perspective of approach his decision ought not to be lightly interfered with ……
Trade and Merchandise Marks Act (1958), Sections 11(1), 12(1) 2(1)(d), 18 and 9—Trade Mark containing certain word of certain language a registered mark— Trade mark containing equivalent of that word in any other language is not entitled to registration—Application for registration of mark containing word ‘Surian’, in respect of soap-goods—Opponents selling soaps under registered trade mark consisting of word ‘Sun’—Word ‘Sudan’ is Tamil equivalent of English word ‘Sun’—Held, use of word ‘Sudan’ was deceptively similar and was likely to cause confusion with Opponent's mark “Sun”. It has been observed in the above decision that, the mark shall be deemed to be deceptively similar to another if it so nearly resembles with the other mark as to be likely to deceive or cause confusion in deciding this question it is sufficient to consider two registered trade marks of the respondents:
(i) mark No. 87107 consisting of a label containing a device of the rising sun and the legend ‘Sunlight’ and
(ii) Registered trade mark No. 147011 consisting of the word ‘Sun’ (solus).
The argument of the respondents which has found favour with the Asstt. Registrar of Trade Marks is that the Tamil word ‘Sudan’ (trade mark of the appellant) is the translation of the word sun and is therefore, deceptively similar to their mark so as to be governed by the prohibition contained in Section 12(1) of the Act and Section 11(a). From the supporting affidavits which have been filed by the respondents there can be no doubt about it that a Tamil knowing purchaser who is not conversant with English will refer to and ask for the respondent's soap as the Surian mark soap. There is every likelihood of customers and dealers being given the surian mark soaps of the appellant when those customers and traders really intend and mean the Sunlight soap of the respondents. There is great room for confusion and mistakes occurring in the minds of the trading communay in thinking that the Syrian mark soap (marked by the appellant) is the product of the respondents. It must not be forgotten that the soaps manufactured and marketed by the respondents are low priced soaps and are used very largely (as substantial major Portion) by low class and illiterate people who do not know English and are not even familiar with the Tamil and there is great danger of the appellant's soaps (with Surian marks) being dumped in the market and passed off as the Sunlight soaps manufactured by the respondents.”
10. In the instant case, the devices Boat and Ship appear to be similar and there is every likelihood of the customers being confused with these trade marks. So, there is great chance for this confusion if the product of the appellant is marketed with similar the trade mark of the respondent. Illiterate people cannot distinguish the words Boat and Ship mentioned in the device. So, it would cause confusion in the minds of the common illiterate people.
11. The Counsel for the appellant pointed out that the words in the devices viz., Boat and Ship means different things and drew my attention to the dictionary meaning. Even though the ship is a large vessel and boat is a similar vessel as contended by the Counsel for the appellant, in practical way of life, the size and nature of the vessel shown in the labels cannot be identified or distinguished. The size of both the device in the label appear to be similar. So, the dictionary meaning of the words Boat and Ship as pointed out by the Counsel for the appellant cannot be applied for the facts and circumstances of the instant case.
12. The Deputy Registrar, taking into consideration all the aspects found that it has to be concluded that both the devices in the trade marks are similar and the use of the impugned trade mark would be likely to deceive or cause confusion. The Deputy Registrar analysing all these aspects, has correctly allowed the opposition and refused registration of the trade mark of the appellant. The finding of the Deputy Registrar of the Trade Marks is entirely justified and it does not warrant any interference.
13. In the result, the appeal is dismissed. No Costs.
14. Appeal dismissed.