S.K. Das JUDGMENT
S.K. Das, J.
1. 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 application under s. 14 of the Trade Marks Act, 1940 (Act V of 1940) (hereinafter referred to as the Act) for registration of the trade name of a biochemical medicinal preparation, commonly known as 'Lakshmandhara', in Class 5 of the Fourth Schedule to the Trade Marks Rule, 1942. The application was made by the respondent as the sole proprietor of Rup Bilas Company situate at Dhankutti in Kanpur. The averments made in the application were that the said medicinal preparation had been in use by the name of 'Lakshmandhara' since 1923 and was sold throughout the length and breadth of India as also in some foreign markets; the mark or name 'Lakshmandhara' was said to be distinctive to the article, and it was stated that the approximate annual turnover was Rs. 40,000/-. Notice of the application was given by the Registrar of Trade Marks, Bombay, and the Amritdhara Pharmacy, a limited liability company and appellant before us, filed an application in opposition. In this application the appellant stated that the word 'Amritdhara' was already registered as a trade name for the medicinal preparation of the appellant, and that medicinal preparation was introduced in the market so far back as in the year 1901; on account of its great popularity many people advertised similar medicines with slight variations of name to pass off their goods as 'Amritdhara'. It was averred that the composite word 'Lakshmandhara' was used to denote the same medicine as 'Amritdhara'; and the single word 'dhara', it was stated, was first used in conjunction with 'Amritdhara' to denote the medicine of the appellant and the medicine 'Lakshmandhara' being of the same nature and to quality could be easily passed off as 'Amritdhara' to the ultimate purchaser. The appellant contended that as 'Amritdhara' was already registered and 'Lakshmandhara' being a similar name was likely to receive the public, registration should be refused.
2. On behalf of the respondent a counter-affidavit was made in which it was stated that 'Amritdhara' and 'Lakshmandhara' were two distinctly different names and no one could pass off one for the other. It was further stated that during the long period of introduction and sale of 'Lakshmandhara' since 1923, no objection was ever raised from any quarter, from the appellant or anybody else, to the use of the name 'Lakshmandhara'. It was denied by the respondent that the composite word 'Lakshmandhara' was likely to deceive the public or could by any stretch of imagination be taken or mistaken for 'Amritdhara'. The respondent further alleged that the single word 'dhara' had no particular significance in relation to the medicine, nor did that word mean or convey any special or exclusive meaning or effect in relation to the medicine. It was also stated that apart from the difference in name, the phial, label and packing of 'Lakshmandhara' had exclusive designs of their own and were not likely to be confused with any other medicine of similar nature, least of all with 'Amritdhara' whose packing was distinctly different in colour, design and layout.
3. The Registrar of Trade Marks dealt with the application and ........