Voltas Limited vs Waltex India And Anr.

S. Jagadeesan, J

The appellant has filed this appeal against the order of the Assistant Registrar of Trade Marks, dated 7.9.1994, rejecting the application filed by the

appellant for rectification of the Trade Mark No. 255522 in Class 7 in the name of M/s. Waltex India. S/Shri U.J. Mehta and K.N. Kurani, trading as

M/s. Waltex India, registered their Trade Mark 'WALTEX' by filing an application as early as 20.3.1969. The appellant herein filed an application in

Form TM-26, dated 10.3.1980, for rectification of the said trade mark contending that the registration of the said trade mark is contrary to the

provisions of Sections 11(a) and 12(1) of the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as the Act). In short, the claim of the

appellant is that the registered trade mark of the respondent 'WALTEX' is phonetically and visually similar to that of the registered trade mark of the

appellant 'VOLTAS', and as such, the respondent's trade mark 'WALTEX' was wrongly remaining on the Register of the Registrar of Trade Marks.

The Assistant Registrar of Trade Marks, considered the claim of the appellant and found that the two trade marks 'WALTEX' and 'VOLTAS' are not

similar either phonetically or visually and both are distinctive and different. Consequently, he rejected Form 26 filed by the appellant.

Aggrieved by the same, the appellant preferred an appeal No. 7/1998, on the file of the High Court of Gujarat, at Ahmedabad, which stood

transferred to this Board pursuant to Section 100 of the Trade Marks Act, 1999, and renumbered as TA/RECT/273/2004/5M/AMD.

We have heard the learned Counsel for the appellant and there was no representation on behalf of the respondents.

The learned Counsel For the appellant submitted that the appellant's trade mark 'VOLTAS' is in the market since 1969 and the same had built up

very good reputation. The first respondent's mark WALTEX' is similar and identical to that of the appellant's mark. Further, the goods of both the

appellant and the first respondent are to be marketed through the common channel, and as such, there is every possibility that the first respondent's

trade mark 'WALTEX', would cause confusion and deception in the minds of unwary purchaser as well as in the trade. The remaining of the first

respondent's trade mark 'WALTEX' in the Register would be in violation of the provisions of Sections 11(a) and 12(1) of the Act.

We have carefully considered the above contention of the learned Counsel for the appellant.

The appellant's trade mark, viz., 'VOLTAS' was registered in their name under No. 169301 in Class 7 in respect of ""Turbine, electric generators

engines and motors (none being for land vehicles), washing and laundry machines, textile machinery, mining machinery, rolling mills, condensers

(steam) compressors (machines), spraying machines, presses (machine), excavating lifting pumps included in Class 7, machine belting machines,

aprons, spindle tapes, agricultural machines and agricultural implements of the larger kind and parts included in class 7 of the aforesaid goods."" The

first respondent had registered its trade mark 'WALTEX' in respect of parts of Diesel Oil Engines (not for land vehicles) and parts of machinery all

included in Class 7.

Now, the primary question for consideration is whether the first respondent's trade mark offends the provisions of Sections 11(a) and 12(1) of the

Act. To find out the similarity of both the marks, it is necessary that they have to be compared.

The Supreme Court in K.R. Chinnakrishna Chettiar v. Sri Ambal and Co. and Anr., expressed at page 149 as under:

The resemblance between the two marks must be considered with reference to the ear as well as the eye and vocular comparison is not always the

decisive test. Therefore, even if there be no visual resemblance between the two marks, that does not matter when there is a close affinity of the two

marks.

Keeping the above principle in mind and also the golden rule that there should not be any microscopic comparison, we have to see both the trade

marks for us. The appellant's trade mark is 'VOLTAS' which is in the market since 1955. The first respondent's trade mark 'WALTEX' is in the

market from the year 1961-62. The word per-se if taken for comparison for a plain reading and for a naked look, both cannot be said to be identical.

Both are totally distinctive both vocally as well as visually. Apart from that, the first respondent's trade mark 'WALTEX' is in the form of label

consisting of the words 'WALTEX' products with a device of two bullocks within a circular strip and whereas the trade mark of the appellant is simply

the word 'VOLTAS'. As the device and the label of the first respondent's mark makes a clear distinction between the two marks, it cannot be said

that the first respondent's trade mark is deceptively similar to that of the appellant. In that case, there is absolutely no possibility of any confusion or

deception either in the minds of the traders or the public. The Registrar of Trade Marks has elaborately discussed the same and has rightly found that

both the marks are not identical. We are in entire agreement with the findings of the Registrar. Consequently, there is no merit in the appeal and the

same is liable to be dismissed.

Accordingly, the Appeal is dismissed with no order as to costs.