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Judgment
K.N. Basha, J
1 . The challenge in this appeal is against the order dated 14/06/2002 passed by the Deputy Registrar of Trade Marks, New Delhi dismissing the opposition filed by the first respondent in DEL/T-582/516710 and consequently allowing the registration of the first respondent/applicant before the Registrar in application No. 516710 in Class 11.
2 . Mr. Deb Jyoti Ghosh, the learned counsel appearing for the appellant would vehemently contend that the impugned order is liable to be set-aside as the learned Deputy Registrar has ignored the substantial contentions raised by the appellant and also over looked the evidence adduced by them. It is contended that the appellant's company is a oldest and world renowned group of companies under the name and style as PHILIPS. It is submitted that the appellant has got the registration for the trade mark PHILIPS in respect of validity of goods viz. radios, tape recorders, record players, electrical apparatus, bulbs, lights and light fittings, domestic appliances, mixtures, grinders etc. It is contended that the appellant obtained the name and fame and world wide reputation in respect of their mark.
The learned counsel would also cite the trade mark registered by them through out the world placing reliance on the materials produced by them. The learned counsel would contend that the registration of the impugned trade mark PHILIPS in class 11 in respect of hurricane lantern is in clear violation, the provision of the trade mark. The learned counsel would also pointed out that the first respondent manufacture the lighting apparatus as that of the appellant dealing in lighting goods and apparatus and as such it would cause confusion among the consumers and as such the first respondent cannot be allowed to use the impugned trade mark which is deceptively similar to that of the appellant's trade mark in their trade mark hurricane lantern.
The learned counsel in support of his contention would also placed reliance on the decision of the Hon'ble Delhi High Court 1994 PTC 287 - Daimler Benz Aktiegesselschaft and Another v. Hydo Hindustan dated 10/11/1993 in I.A. No. 5843 of 1993 in Suit Non. 1388 of 1993.
5 . We have given our careful consideration to the contentions put forward by the learned counsel for the appellant and also perused the entire materials available on record including the impugned order passed by the Deputy Registrar of Trade Marks, New Delhi.
6 . In this matter the efforts taken by the appellant to serve the notice to the first respondent are not materialised and as a result, we have ordered notice through paper publication. Pursuant to our order, the appellant also has given the paper publication and also produced the relevant documents viz. copy of the Newspaper publication in respect of the instant case. But unfortunately the first respondent neither appears in person nor through any advocate till date and as a result, we have proceeded with the matter on the basis of merits.
7 . At the out set, it is to be stated that the appellant has obtained registration in respect of their trade mark PHILIPS under Class 11 in respect of the goods manufacture by them to be operated exclusively through electricity power. As far as first respondent is concern, it is the admitted case of the appellant that they are exclusively dealing in Hurricane Lantern which is to be used for the purpose of lighting with kerosene. We are constrained to state at this stage that as in the modern age, the use of Hurricane Lantern by the public is very negligible. There is absolutely no question of the first respondent by their manufacture of Hurricane Lantern to compete with the appellant's products which are exclusively electrically operated products for the purpose of lighting etc. Equally, we are of the considered view that apart from the fact of the products of the appellant and first respondent are totally different, the consumers are also different. The yet another factor to be borne in mined is it is categorically admitted by the appellant that they are not manufacturing similar goods as that of the Hurricane Lantern manufactured by the first respondent.
8 . The perusal of the impugned order clearly reflects that the Deputy Registrar has considered each and every contentions put forward by the appellant while opposing the registration of the impugned trade mark and he has also placed reliance on the land mark decision of the Hon'ble Supreme Court and as well as the Hon'ble High Court. The appellant has not at all able to point out any infirmity or illegality in the impugned order warranting our interference.
9 . In the impugned order, the Deputy Registrar has considered the contentions put forward by the appellant while opposing the impugned registration in respect of alleged violation provision under Section 11(1), 12(1) and 18(1) of the Act. It is seen that the Deputy Registrar has highlighted the difference between the Hurricane Lantern and the Electronic lighting installations and ultimately held that both the products are totally different and the respective customers are also totally different and as such held that the contentions to invoke the prohibition as per provision under Section 12(1) of the trade marks are not fulfill.
The Deputy Registrar has also dealt with provision under Section 11(a) of the Act which prohibits registration of the trade mark which is likely to deceive or cause confusion amongst the consumers in respect of the said aspect the Deputy Registrar has placed strong reliance on the decision of the Hon'ble Apex Court in Vishnudas Trading as Vishnudas Kishandas v. Vazir Sultan Tobacco Co. Ltd., Hyderabad and another reported in AIR 1996 SC 2275.
The Hon'ble Apex Court clearly held in the said decision as hereunder:
"Section 12 of the Trade Marks Act prohibits registration of identical or deceptively similar trade marks in respect of goods and description of goods which is identical or deceptively similar to the trade mark already registered for prohibiting registration under Section 12(1), goods in respect of which subsequent registration is sought for, must be (i) in respect of goods or description of goods being same or similar and covered by eerier registration and (ii) trade mark claimed for such goods must be same or deceptively similar to the trade mark already registered. It may be noted here that under sub-section (3) of section 12 of Trade Marks Act, in an appropriate case of honest concurrent use and/or of other special circumstances, same and deceptively similar trade marks may be permitted to another by the Registrar, subject to such conditions as may deem just and proper to the Registrar. It is also to be noted that the expression "goods,, and "description of goods' appearing in section 12(1) of trade Marks Act indicate that registration may be made in respect of one or more goods or of all/oil goods conforming. a general description. The Trade Marks Act has noted distinction between description of goods forming a genus and separate and distinctly identifiable goods under the genus in various other sections e.g. goods of same description in section 46. Sections 12 and 34 and crass of goods in section 19, Rules 12 and 26 read with 4h schedule to the Rules framed under the Act."
The learned Deputy Registrar also placed reliance on the decision of the Hon'ble Delhi High Court in Kedar Nath Gupta v. J.K. Organisation 1998 PTC 189 and the Hon'ble Delhi High Court held that.
"causing confusion or deception must relate to the goods among with the trade mark and not alone to the trade mark, is the submission of the learned counsel. It is rightly contended that the moment it is accepted that the confusion and deception has to be in relation to the goods and that the opponent were not producing locks nor they had got any trade mark registered for the purpose of manufacturing the locks or anything of the class 6, there could neither be confusion nor deception nor it is possible to presume so."
It is also pertinent to note that the Deputy Registrar while passing impugned order also placed reliance on the registration of the trade mark in respect of the different goods under the name PHILIPS and ultimately held that the word PHILIPS is a common surname/personal name in India also. The Deputy Registrar also placed reliance on the evidence adduced by the first respondent in respect of their use and the sales return for the substantial period.
It is seen that in the impugned order, the Deputy Registrar has also dealt with the citations relied by the appellant herein is not applicable to the instant case and he is able to distinguish the said decision in respect of the issue involved in the instant case.
The learned counsel for the appellant would also place reliance on the decision of the Hon'ble Delhi High Court in 1994 PTC 287-Daimler Ben Artiegessel-schaft and Another v. Hydo Hindustan. In respect of the decision, it is to be stated that is the order passed in IA not at that time the final hearing and the suit was pending. We are of the view that the said decision is not applicable to the issue involved in the instant case.
The learned counsel would also placed reliance on the decision of the Hon'ble High Court of Punjab and Haryana in Banga Watch Company v. N.V. Philips, Eindhoven, Holland and Anr. reported in AIR 1983 P&H 418. In the said decision, the Hon'ble High Court has considered in respect of similar goods viz. watches and clocks in respect of both the parties and the said decision is not applicable to the issue involved in the instant case, as we have already highlighted about the difference between the goods or products manufactured by the appellant and the first respondent and we have concurred with a view of the Deputy Registrar to the effect that the goods manufactured by the first respondent to be used with kerosene is totally different from the electronic goods manufactured by the appellant are to be used by electrical energy.
In view of the aforesaid reasons, we are of the view that no ground made out warranting our interference in the impugned order. Accordingly, the appeal is dismissed.