Mohamed Noorulla vs Syed Hedayathtulla Sahib and Another

S. Ramachandra Ayyar, C.J.—These appeals are filed under Clause 15 of the Letters Patent against the judgment of Anantanarayanan J., affirming on appeal the order of the Deputy Registrar of Trade Marks, Bangalore, who directed the registration of two trade marks applied for by the first Respondent. Both the Appellant as well as the first Respondent are manufacturers and sellers of beedies. From the figures available, it appears that the Appellant''s business is more extensive, roughly about four times as much as the first Respondent''s. But the first Respondent''s turn over cannot be regarded as any way inconsiderable. Both of them have considerable and increasing sales of their products since the year 1946 and they have also been spending substantial amounts in advertising their goods.

In January 1948, there was an exhibition at Triveliore in connection with an Agricultural Conference held at the place. The Appellant and the first Respondent who were allotted stalls near each other, competed in the matter of effective display of their goods, using prominently their respective trade marks. The first Respondent''s advertisement was adjudged to be the best in the exhibition and he was awarded a gold medal, a silver cup and a certificate of merit for its excellence.

In September 1948, the first Respondent applied to the Deputy Registrar of Trade Marks, Bangalore, to register the two trade marks which he had been using. The design and get up of these marks were substantially similar to the one which had been used by the Appellant. The captions adopted for the first Respondent''s two labels are:

(1) 25 First Quality Speed Lever Beedis 25;

(2) 25 First Quality All Lever Beedis 25.

The corresponding heading in the Appellant''s label is;

25 First Quality Spade Clover Beedis 25.

The similarity does not stop there. We shall now give the other features of the rival trade marks. The essential features of the first Respondent''s mark in respect of which registration is sought are these : Just in the centre of a decorated rectangle, two circles are drawn adjacent to each other on which there appear three figures of clocks so placed as to form a figure like a clover, one of the motifs employed in playing cards the keys of the two bottom clocks being noticeable. The two circles have a diametrical belt running across, wherein are printed the words Speed Lever Beedi in English and Urdu, respectively on the left and right hand circles. On either beside of the circles are printed Speed Lever Jadi Beedi Factory in English and in Tamil and Urdu. Below the circles and underneath the marginal writing, we find the name of the first Respondent in bold English letters.

The design in the other label of the first Respondent is identical except for the caption which says First Quality All Lever Beedies.

For the purpose of easy reference, we shall refer to the first Respondent''s two marks as Speed Lever mark.

The design adopted by the Appellant is this: Within a rectangular border ornamental alternatively with the figures of clover and spade and under the caption Use always 25 first Quality Spade Clover Beedies 25 there are two-circles enclosing within them the figure of clover in black. Inset within the clover is the figure of spade: in the centre of the two circles runs a diametrical belt containing the words Spade Clover Beedi in English and Urdu. On the left and right hand sides of the circles the name of the Appellant''s factory in English and Tamil and Urdu is printed. Underneath these and the two circles the name of the Appellant is printed in bold letters. For the sake of brevity we shall refer to this mark as Spade Clover mark.

There is an undoubted overall similarity between the two rival trade marks. There are also a few dissimilar features. The most striking similarity is with respect to the two contiguous circles in the middle of the rectangular design. Inset the design in the Appellant''s mark, is clover: while in the first Respondent''s the arrangement of three clocks is so made that its outline is similar to a clover. Further, the general got up, nomenclature, descriptive words used and the arrangements of the matter on the four sides within the rectangular design are almost identical.

These two marks have been used in the market side by side for sometime prior to the date when the first Respondent applied for registration.

For some reason, which it is not necessary now to explore, the disposal of his application was delayed by several years. While it was pending, the Appellant came forward to have his mark registered. The first Respondent could not possibly oppose the registration of the Spade Clover mark as his case had throughout been that that mark was quite distinct from his own and therefore he did not do so. The Appellant, therefore, got his Spade Clover Mark registered. But when the first Respondent had his earlier application to register his Speed Lever Mark advertised, the Appellant''s reaction was different. He saw some danger to his business if that mark were allowed to be entered in the register. He, therefore, opposed the registration. His case was that from the year 1925 his father had been extensively trading by using the Spade Clover mark and that this mark having been entered in the registers of the Madras Chamber of Commerce as early as 1923, and that as then public had begun to associate his goods with his mark and that first Respondent''s Speed Lever mark being identical with or deceptively similar to his own, would cause confusion in the market.

We may as well dispose of the first part of the claim even now. The entering up of a trade mark in the registers of bodies like Chambers of Commerce can only indicate that the particular mark has been in existence on the date of its registration: that would not, however, be sufficient to prove its user on the date of such registration. Vide Subbiah Nadar v. Kumaravel Nadar (1946) 2 M.L.J. 223 (P.C.) Nor can it prove its reputation in the market as representing the goods of the person registering it.

The Appellant''s claim is that his mark subsequently secured for itself an association in the mind of the public with the goods of his manufacture. This claim remains largely uncontradicted.

It is, therefore, unnecessary to consider whether the Appellant who secured a registration of his mark subsequent to the application now before us could as of right offer opposition thereto; for his was an existing mark which to the public mind indicated his goods and he would therefore be entitled to show-that registration of the rival mark would have the effect of creating confusion in the market and should not be allowed.

The controversy before the Deputy registrar of Trade marks in the matter of similarity between the two marks covered a wide ground. But a close analysis of the position by the learned Judge at the time of the appeal has narrowed down the points within a comparatively short compass. At the time of arguments before us the Appellant did not claim any exclusive right to the size of the label, the decorated border, the inset design of the clover in two circles adjacently placed, the diametrically placed bands bearing the names-of beedies, the captions like Please look out, Try and enjoy, Use Always, etc.

At the time of the registration of his mark, the Appellant himself entered a disclaimer stating that the registration of his mark.

shall give no right to the exclusive use of the device of a club.

He also admitted at that time that the device of a club was common to the beedi trade. Consistent with that concession, the Appellant claimed in his opposition that the two essential features of his mark were: (i) the device of a club inlaid with the figure of a spade and (ii) the expression Spade Clover Beedis, Clover Beedis and Spade Clover Jadi Beedi (vide paragraph 5 of his opposition). In other words, it is not the general or peculiar arrangement that is claimed to be distinctive of his trade mark but it is said that the two features specified, mark it out from the rest which are common to the trade. Again while the device of a clover would not be distinctive such device having within it a figure of a spade is peculiar to the Appellant''s mark. Anantanarayanan J., after excluding the features, common or open to the trade in the two marks, while considering whether it be said that there, was an imitation even with respect to the two distinctive features of the Appellant observed:

Adopting these criteria, the present matter is very clear upon the merits, even in respect of the oblong labels. The first Respondent''s trade marks refers to a pocket watch and the very words have an association or meaning with reference to that object. In his design the first Respondent is, illustrating that object, namely, a pocket watch or watches, in a particular combination. The Appellant''s trade mark refers to two motifs of playing cards, namely, spade and clover inset in a particular way. He has illustrated those objects'' in his labels. Undoubtedly the ordinary purchaser would form a mental association between the appellations and the object illustrated. He would think of watches and would be looking at an illustration of watches or would be looking for it, when he is concerned with buying beedis of the first Respondent''s manufacture. Similarly he would be thinking of playing cards and would be seeing two motifs of playing cards (spade and clover or club) or looking for them, when buying or enquiring for the beedis of the Appellant. Thus there is no affinity, whatever, and there can be no visual resemblance which is likely to deceive so long as the purchaser has-this mental association.

This method of comparing the two marks though perhaps justified by the claim in the opposition and presumably by the arguments addressed before the learned Judge, has now been criticized by the learned Counsel appearing for the Appellant as being entirely contrary to the principles which should govern a Court in the matter of registration, of trade marks. It has been argued that as the duty of the authority is to maintain the purity of the register, it should not admit for registration any mark which is deceptively similar to an existing mark on the register or the use of which will cause confusion in the market. A correct way of deciding that matter will be, it is contended, to compare the marks as a whole and not search for dissimilarities. The argument, so put, is unobjectionable. In XXXVIII Halsbury''s Laws of England (third edition) at page 589 the rule as to comparison is thus stated:

The marks, names or get up concerned'' must always be considered as wholes, as the true test is whether the totality of the impression given both orally and visually is such that it is likely to cause mistake deception or confusion.

In comparing two marks, it must be considered whether the marks have, or may suggest, the same idea or lead to the goods being referred to by the same name.

The tribunal must bear in mind that the marks will not normally be seen side by side and guard against the danger that a person seeing the new mark may think that it is the same as one he has seen before, or even that it is a new or associated mark of the proprietor of the former mark. The doctrine of imperfect recollection must not, however, be pressed too far. Marks are often remembered by general impression or by some essential feature, (at page 590).

Stated differently the rule will be that the register of trade marks should hot contain trade marks which are identical or which so closely resemble each other that an unwary purchaser would be deceived that he is buying goods of a particular trade mark or manufacture, whereas he would actually be purchasing the goods of another manufacturer. It is for this reason that before registration of a mark is permitted, it is obligatory on the part of the registering authority to see whether the mark proposed to be registered is likely to deceive or cause confusion in the market by reason of an identical or similar mark being either in the register or at least in respect of which the public had become associated with the goods of some other manufacturer. (This rule is, however, subject to an honest concurrent user with which we are now concerned).

A registration of trade mark creates title thereto to the person registering against everybody, else, and it would therefore be relevant to consider not merely the resemblance of a proposed mark to an existing mark in which there is a property in another or is associated with his goods, but also of its possibility of its deceiving or causing confusion in the trade.

The question whether there is a likelihood or possibility of confusion if both the marks were allowed to remain in the register is one of fact to be decided oh the basis of the impression the marks would make in the minds of the purchasers to whom they are intended. The onus of proving whether an alleged offending mark is likely to create confusion is differently placed in cases where registration of mark is sought and in those where an action for infringement is laid by the user of one mark in competition with another. In the matter of Dunn''s Trade Mark 7 R.P.C. 311. Lord "Watson Speaking as to onus in the case of registration observed:

He does not hold the same position which he would have occupied if he had been defending himself against an action for infringement. There, the onus of showing that his trade mark was calculated to mislead, rests, not oil him, but upon the party alleging infringement; here, tee is in petitoiio, and must justify the registration of his trade mark by shewing affirmatively that it is not calculated to deceive. If appears to me to be a necessary consequence that, in, dvibio, his application ought to be disallowed.

Mr. V. Tyagarajan appearing for the Appellant relying on the strength of the above authority has contended that ah overall inspection of the two designs shows such a striking resemblance between the Spade Clover, the existing mark and Speed, Lever, the mark in respect of which registration is sought, that the latter if permitted would create confusion in the market. Even if there be no certainty about it, it is contended, that the matter must be regarded at least as one in dubio and even in that event the opposition should prevail.

We must, however, point out that although the general rule for ascertaining whether there will be a possibility of confusion between two marks is to compare them as a whole, yet if there be features in them common to the trades, one can reasonably assume that the mind of the public will be associated not with such common features but with any distinct aspect they may contain. The real question in all such cases is to consider how an average man of ordinary intelligence would react to a particular trade mark, what association he would form by looking at the trade mark and in what respect he would connect the trade mark with the goods he would be purchasing. Vide the decision in National Sewing Thread Co. Ltd. Vs. James Chadwick and Bros. Ltd. (J. and P. Coats Ltd., Assignee), . The test to ascertain the effect of a mark on the purchaser as stated in Kerly on Trade Marks (eighth edition) at page 403 is:

It must not be assumed that a very careful or intelligent examination of the mark will be made if it were Shown that the class of persons who bought the goods were illiterate that would be a material fact In cases where printing entered into the marks. But on the other hand, it can hardly be a bar to the admission of a mark that unusually stupid people, fools or idiots may be deceived.

That the test is of the reaction which an ordinary purchaser purchasing with ordinary caution has and not that of an abnormal person, has been emphasized thus by Romer L.J., in Payton & Co. Ltd. 17 R.P.C. 48, 57.

It seems to be a sort of popular notion of some witnesses that in considering whether the customers are likely to be deceived, you are to consider the case of an ignorant customer who knows nothing about, or very little about the subject of the action. That is a great mistake. The kind of customer that the Courts ought to think of in these cases in the customer who knows the distinguishing characteristics of the Plaintiff''s goods, those characteristics which distinguish his goods from other goods on the market so far as relates to general characteristics. The customer most be one who knowing what is fairly common to the trade, knows of the Plaintiff''s goods by reason of these distinguishing characteristics. If he does not know that he is a customer whose views east properly, or will be regarded by this Court.

...There ate many customers who have very little knowledge of the goods on the market.... A customer like that must not be regarded or considered in dealing with eases of this class, and J think that Plaintiffs in cases of this kind are too fond of laying hold of customers of the class I have been referring to, persons of an ideal character, who either are particularly innocent or too easily deceived.

The similarity between the marks might consist in their appearance or it might merely be a phonetic similarity with respect to their names. As we said in cases of registration it is the likelihood or possibility of confusion between the marks in the minds of the class of person that is likely to become purchaser, the hypothetical man of average intelligence with ordinary caution but with imperfect memory. Such a person will undoubtedly look only at the distinctive features of a mark where those features are mixed up with others which are common to the trade.

On behalf of the Appellant this position is not, however, accepted: it is argued, whether common features exist or not, it is the whole mark that has to be taken up for comparison, support for the contention is sought in the following passage in the judgment of Lindley L.J., in Christiansen''s Trade Mark 3 R.P.C. 54:

I think if we look at the two boxes as they are sold and issued in the trade the resemblances between the two are so great that, although there are differences which might be detected, yet these differences are not so obvious as to make the whole dissimilar. I am quite aware that there is a great mass of evidence to show that a great portion of what is on these, bases is common to the trade. That, to my mind only makes it the more imperative that tine distinguishing features shall be such as to make the dissimilarity obvious. If the dissimilarity is so small, and the common features are so numerous that the two as a whole are similar the dissimilarity goes for nothing and the more there is that is common and similar, the more difficult it is to make dissimilarity striking. I do not say it cannot be done, because, of course, it can be done.

That was a case where a rectification of the registration of an existing mark was sought on the ground that it created confusion in the trade. There was a pre-existing mark on the register for a particular type of goods which contained pictures of two medals. Another mark was registered that formed the subject of rectification application--which had two circular blanks pf the same size as the medals for the same type of goods. But it was the intention of that trader to fill up the blank places while putting the marks to actual use and he imprinted medals on them so that in actual use the two marks became similar. It was held in an application for rectification, the offending mark could be compared with the infringed one not merely in the form in which it was registered but also in the form in which it was actually used.

But although the actual decision in that case will have no relevance to the present one, it will be clear from the observations extracted above that two marks which have common features could co-exist in the register if there be distinguishing features that are striking. In other words the normal rule to be applied for deciding whether a trade mark should be admitted to registration or not, is to compare that mark with the existing marks as a whole and see whether the presence of both will cause confusion in the trade. But where both the marks contain features common to the trade then one has to see whether there are dissimilarities. If there be none, the second mark cannot be admitted to registration. If there be some, then it has to be seen which part of the mark, namely, the points of resemblance or the points of difference will strike the mind of the purchaser. If it be the former, then again the new mark cannot be registered. It it were the latter, that mark can be registered as by reason of its apparent distinguishing features there would be no likelihood of confusion in the market. This rule is not in any way contrary to the general rule that for the purposes of registration or of rectification of register or for deciding whether there has been an infringement, it is the whole mark that has to be looked at. A trade mark is an entire thing as registered. The application of the rule becomes difficult where both the marks contain features common to the trade. It can be assumed that in such cases, the purchaser who must be familiar with such common features will ignore them and try to retain in his memory only that part of the mark that is distinctive. In all those cases the method of comparison as enunciated by Lord Russel in Coca-Cola Co. of Canada Ld. v. Pepsi-Cola Co. of Canada Ld. 59 R.P.C. 127 is:

Where you get a common denominator, you must, in looking at the competing formulae, pay much more regard to the parts of the formulae that are not common--although it does not flow from that, that you must treat the words as though the common part was not there at all. In the matter of Broad head''s application for registration of a Trade mark 67 R.P.C. 209, 215.

Now the distinctiveness of the mark containing feature common to the trade might arise because (i) of a new additional striking feature in it, (ii) the peculiarity of the arrangement of the common features and (iii) the new features "by themselves though not striking are so placed in the general scheme that it makes the whole distinctive. In the present case the device of a clover which is so prominent in the Appellant''s mark can certainly be said to be distinctive although the arrangement of matter surrounding it has no special peculiarity. But even in respect of the clover design, the Appellant has entered a disclaimer! The effect of a disclaimer is that it is either non-distinctive or one common to the trade. A disclaimed portion of a mark will therefore be an unessential part of it and other person can adopt the disclaimed part of the mark in the composition of their own mark.

Now let us consider what is it that exists in the Appellant''s mark which is distinctive from the common features prevalent in the trade. There is no special arrangement of the disclaimed portion or other common features. But it is claimed that its distinctiveness consists in the figure of spade being inset in clover and in the use of the words Spade Ciover. These are admitted to be peculiar to the Appellant''s marks. Apart from this, it is not claimed that there is anything special cither in the juxta position of the common features with these or that there is anything in the matter of any special arrangement which will strike the purchaser. The first Respondent''s mark has largely adopted the B common features. It can be said to have in a way copied the disclaimed clover design as the arrangement of the three clocks is in the pattern of a clover. But that too has its awn special features, namely, the clock arrangement, is distinct from the figure of a clover inset with spade the words in the caption are Speed Lever and All Lever. Thus there is dissimilarity between the two marks in the central device as well as in their captions.

What is the rule of comparison in such a case? Romer L.J., in the course of his judgment in Puyton and Co. Ld. v. Swelling, Lampard and Co. Ld. 17 R.P.C. 48, 56 observed:

I quite agree that when one person has used certain leading features though common to the trade if another person is going to put goods on the market, having the same leading features, he should take extra care by the distinguishing features he is going to put on his goods, to see that the goods can be really distinguished, and I think that is what the Defendants really did do in this case, assuming that they were entitled, as they were'',....

What the tribunal should do in all such cases will be to find out whether the dissimilarities are the distinguishing features of the marks. If it finds that the trade mark whose registration is sought contains the same or similar essential features of the one already on the register, the other parts of the mark being Common to the trade, its registration should not be allowed. If the dissimilar features of the respective mark are such that they alone will be associated in the mind of the purchasing public with reference to the goods manufactured there would be no question of any confusion arising in the mind of the purchaser.

There is no harm in a trader adopting in part for is trade mark which is common to the trade. It might be for the reason that it is fashionable in that trade but this liberty cannot be extended to copying the peculiarities of the trade mark of another who in part had adopted the very common features. On this point there are some extremely useful observations in the judgment of Kekewich J., in Alaska Packers Association v. Crooks and Co. 18 R.P.C. 129. The action was on infringement but the facts bear a singular similarity to the case before us. The Plaintiff a trader in canned salmon had a trade mark consisting of a ring within which was printed the head of a moose together with the words Moose Head Brand on its left. There were other features common to the trade. The Defendant�s mark was of the same type. Instead of the moose there was a red deer''s head with its horns. There were the words Deer Head Brand. Both the marks contained the name of the trader or packer. It was held that after putting aside the common features, there was to the eye something distinctive in each and that there could be no probability of deception of one who knew the distinguishing features of the Plaintiff''s tin.

Again in In the Matter of an Application by Harrods, Ld., to Register a Trade Mark in Part B of the Register 52 R.P.C. 65, it was said:

Now it is a well-recognized principle that has to be taken into account in considering the possibility of confusion arising between any two trade marks, that, where those two marks contain a common element which is also contained in a number of other marks in use in the same market, such a common occurrence in the market tends to cause purchasers to pay more attention to the other''s features of the respective marks and to distinguish between them by those other features.

This passage has been cited with approval by the Supreme Court in Corn Products Refining Co. v. Shangrilla Food Products Ltd. (1960) 1 S.C.R. 968 though for a different purpose.

We shall now proceed to consider as to whether the dissimilar features in two trade marks before us are distinctive of each. As we said already the arrangement of three clocks within the two circles in the first Respondent''s Speed Lever mark gives the general impression of an outline of a clover. But the purchaser of the Appellant''s goods must know the distinguishing character of his mark, namely, that which distinguished it from what is common to the beedi trade.

The distinctiveness of the Appellant''s mark consists in the motif of spade being inset within the clover. In the first Respondent''s mark there is no design of spade inside the figures of the three clocks or anything like it. The four motifs of playing cards can be taken as generally well known to the class of people who go in for beedis whether they be literate or illiterate. Though it can be said that one might mistake the three clocks in the Speed Lever beedis with a clover, there is no such likelihood of their being mistaken for a clover-cum-spade figure in Spade Clover beedis. The decorative rectangular border of the Appellant''s mark contains alternate figures of clover and spade and is further called Spade plover beedis. It is not likely that a person even with an imperfect memory of the Spade Clover mark win mistake the Speed Lever mark as representing the Appellant''s goods. There being thus no chance of visual confusion we have next to consider the phonetic aspect of the matter. Once it were to be found that the design of the clocks in the first Respondent''s mark is sufficiently prominent or distinctive in itself to impress in the mind of a purchaser and that likewise the Appellant''s mark will be associated in the minds of his customers with two combined motifs of playing cards, the respective headings are not likely to cause confusion. But that apart the word Speed Lever cannot in our view be regarded as so phonetically similar to Spade Clover a very familiar word to players of cards, that there would be any chance of confusion between the two. The learned Judge whose knowledge of Tamil and of the manners and customs of the people in this part of the State is extensive, has field that a purchaser of the Appellant''s goods is not likely to mistake the expression Speed Lever or All Lever for Spade Clover. It will be useful in this connection to refer, to the recent judgment of Lord Jenkins, In the Matter of Application Nos. 724, 931 and 724, 932 by Kidax (Shirts), Ld. for the Registration of Trade Marks (1959) R.P.C. 295, where in respect of mark Kidax there was opposition from the proprietor of a trade mark Daks. The opposition was refused on the ground that as a matter of the ordinary use of English language there could be no mistaking of the one for another. That decision is of particular importance to the present case for there as here, there was complete absence of evidence of deception notwithstanding the existence of the two marks in the trade for a number of years.

Learned Counsel for the Appellant has, however, invited our attention to a number of decisions relating to the question of phonetic similarity and contended that the expression Speed Lever, if pronounced would be mistaken for the words Spade Clover. Quite recently one of us sitting in a Bench had to consider several of the decisions bearing upon the question of phonetic similarity of rival trade marks. In one case it was held that the use of the word Perry''s would be an infringement of a trade mark containing the word Parry''s and in the other it was held that the word Ambal so nearly resembled that the use of the latter word constitute an infringement of tie registered trade mark Ambal. Vide the decisions in Appeal No. 297 of 1959 and Letters Patent Appeal No. 57 of 1982.

In Amritdkara Pharmacy v. Satyadeo Gupta (1963) 2 S.C.R. 484 it was held that the words Lakshmandhara and Amritdhara used in connection with certain medicinal preparations were so similar to each other, that the former was likely to deceive and confuse persons of the class who had been purchasing the latter preparation. But that decision related to medicinal products where tile purchases would be comparatively occasional and at any rate not as wide as in the case of beedis. Purser there is a special rule in the case of pharmaceutical products where the public should be protected in a greater degree from possibilities of confusion. Vide XXXVIII Halsbury''s Laws of England (third edition), 590.

Again where the words employed convey definite ideas, there being no possibility of anyone being deceived by the use of the respective words, it has been held that there would be no objection to the grant of registration of the marks containing such words.

In Application by Thomas A. Smith Ld. to Register a Trade Mark 39 R.P.C. 363, there was a registered trade mark with the word Summit. An attempt by the proprietor thereof to oppose the registration of another mark with the word Limit failed as the Court held that the words were those in common use each conveying a definite and different ideas.

Similarly in Fitchetts, Ltd. v. Loubet and Co., Ltd. 36 R.P.C. 296 it was held that there could be no infringement of a registered trade mark YTO by the Defendant�s use of the mark Rito. Sargant J., held that while the word YTO conveyed the impression of a whitening effect of the goods, the other mark Rito was a slang of the word tight and that they could not be confused with each other.

We have already referred to the different impressions which the words Spade Clover and Speed Lever will create in the purchaser.

In addition to this we must also refer the fact that both lie marks have actually been in use for quite a long time in the market, the goods bearing the marks of both the traders have been sold through similar agencies to the public without any instance of confusion having arisen. Since at least the year 1946 both the marks have been m constant and frequent use for the same class of goods. The two traders had rival stalls in an exhibition at Trivellore where they displayed their goods with their respective trade marks attached to them. There has been no complaint of any confusion having arisen in the mind of the purchasers of beedies. It is also significant that till the year 1958, when actually opposition to the first Respondent''s application came up for consideration, there was no proved instance of any confusion having arisen in the mind of the public regarding the two marks. On the other hand, we are told that there have been civil litigations between the Appellant and the first Respondent in which the former tried to obtain an injunction against the latter in regard to the use of his mark but without success. In XXXVIII Halsbury''s Laws of England (third edition) at page 592, it is stated:

The Court attaches great importance to evidence that both the marks have actually been in use for a long time or that the goods bearing the marks have been sold through the same outlets of the public without any instances of confusion having arisen.

The facts in the present case confirm the finding reached by the learned Judge and by us that there is no likelihood of any confusion arising in the mind of the public in the market by the two marks being allowed to exist side by side. We, therefore, find ourselves in agreement with the learned Judge in the conclusion reached by him. In this view it is unnecessary to deal with the other argument advanced by learned Counsel for the first Respondent about his right to registration by reason of the concurrent user of the marks. The appeals fail and are dismissed with costs.