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Judgment
S. Jagadeesan, J
This appeal is by the appellant against the order of the Assistant Registrar of Trade Marks rejecting their objections for the registration
of the respondent's trade mark “APPU†brand and the device of an Elephant in respect of wheat products viz., Maida, Rawa, Sooji,
Atta, in class 30.
The respondents filed an application in Form TM-1 on 1st April, 1987 under No. 470144 for registration of a trade mark APPU brand
and device of an Elephant in respect of wheat products. The mark was ordered to be advertised before acceptance in the Trade Marks
Journal dated 16.11.1992. The appellant filed their objections on 12.1.1993 stating that they are the proprietors of the trade mark APPU
brand in respect of Maida, Sooji, and Atta, in class 30 and have applied for registration of their trade mark on 16.1.1992 and the same is
pending with the Registry and that they have been continuously and extensively using the aforesaid APPU brand ever since January,
1983 and the said trade mark has become will known and much reputation and valuable goodwill have accrued. The trade mark sought
to be registered by the respondent is identical with and/or deceptively similar to the appellant's trade mark and as such the same is
prohibited under Sec. 12(2) of the Act. Further, the appellant being the established user, the registration of the respondent's mark is
prohibited under the provisions of Sec. 11(a) and 11(e). The respondents also
 filed counter denying the averments made by the appellant in the notice of opposition. The Assistant Registrar of Trade Marks, under
the impugned order over-ruled the objections of the appellant and directed the acceptance of the trade mark of the respondent. The
appeal is against the said impugned order of the Assistant Registrar. We have heard Ms. Gladys Daniel on behalf of the appellant and
Ms. Usha on behalf of the respondent.
The main contention of the learned counsel for the appellant is that a mere book of both the trade marks would clearly give the picture
with regard to the identity of similarity for a naked eye. When that be so, the impugned order of the Assistant Registrar cannot be
sustained. Moreover, the Assistant Registrar is not correct in finding that APPU being the symbol of Asian Games has becomes ap ublic
juris of general nature and consequently the appellant cannot raise any objection.
The learned counsel for the respondent fairly admitted that a sheer look of both the trade mark would make it clear that there is
similarity since both the marks are almost identical device. But, however, in support of the reasoning given by the Assistant Registrar of
Trade Marks she contended that APPU having become a symbol of Asian Games, it cannot be said that the respondent has copied the
appellant's mark. Further, it was contended that the appellant has not led in any evidence that the use of the mark sought to be
registered had caused any confusion in the public with regard to the identity of the goods. In the absence of such evidence, the order of
the Assistant Registrar needs no interference.
We have considered the contentions of both the counsels. We have also perused the impugned order of the Assistant Registrar.
As already pointed out, admittedly there is no difference between the marks used by the appellant as well as the respondent. Though
the appellant filed an application in 1992 for the registration of their trade mark APPU brand, their claim is that they are using the trade
mark from 1983. The respondent filed their application for registration on 1st April, 1987, which is much later to that of the appellants and
they have also claimed use from 17th January, 1986. As regards the use of the trade mark by the appellants since 1983, there is no
controversy. The Assistant Registrar also did not discuss anything on this aspect, perhaps on the basis of Exhibits-A, the sales turn-
over filed by the appellants from the years 1982â€"83 for which there is no serious objection. Hence, there is no dispute with regard to
the earlier use of the appellant in respect of the trade mark APPU with a device Elephant.
The main ground on which the Assistant Registrar over-ruled the objections of the appellant is that the appellants have not produced
any evidence to show that the use of the applicant's mark resulted in confusion and deception in the minds of the purchasers and the
other ground is that the respondents have adopted their mark keeping in view the symbol of Asian Games.
On a careful consideration of the contentions of the learned counsel on either side, we are of the view that the reasoning of the
Assistant Registrar of Trade Marks cannot be sustained. When the trade mark used by both the parties are identical, the question of
producing any evidence to substantiate confusion and deception in the minds of the purchasers is absolutely unnecessary.
Only where the trade marks are with some variations and one can be differentiated from the other however slight it may be, it is
incumbent on the party who pleads confusion by the use of such mark to produce evidence. In this case, both the trade marks are
identical and there is no variation or difference in any manner and this aspect has been virtually accepted by the learned counsel for the
respondent also. In such circumstances, we do not think that there is any obligation on the part of the appellants to produce evidence to
establish confusion in the minds of the purchasers. When both the marks are identical, and the rival goods are same, it goes without
saying that there would be confusion in the minds of the purchasers by the use of such marks by both the traders of the same goods.
So far as the other reasoning of the Assistant Registrar that the respondent adopted the brand APPU on the basis of the symbol of
the Asian Games, admittedly, Asian Games is much later than the adoption of the said trade mark by the appellant. The appellant is
using the trade mark since 1983, and they had established reputation in the trade in respect of their goods in the State of Andhra
Pradesh. The respondent being a trader in the same goods, cannot be permitted to adopt the same trade mark as that of the appellant
even in the State of Andhra Pradesh. Assuming that the respondent adopted the trade mark on the basis of the symbol of the Asian
Games even then it cannot be allowed as the appellants are the prior adopted and user of the trade mark.
For the reasons stated above, we are unable to sustain the order of the Assistant Registrar of Trade Marks and consequently, the
same is set aside and the appeal is allowed. There is no order for costs.