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Judgment
S. Usha, J
Appeal arises out of the order dated 22.06.2009 passed by the Assistant Registrar of Trade Marks dismissing the opposition and allowing to
proceed as per rules subject to condition laid down at pre-advertisement stage as per the provisions of the Trade Marks Act, 1999 (hereinafter
referred to as the Act).
2 . The above matter was posted for hearing on 05.07.2011 the Appellants counsel was present but there was no representation on behalf of the
Respondents. The matter was therefore adjourned to 06.07.2011 and 07.07.2011. As there was no representation by the Respondent on both the days,
the Respondents were set exporter and we proceeded to hear the Appellant.
3 . The 1st Respondent herein filed an application for registration of the trade mark ANZOCIN on 06.09.2002 under No. 1131652 in class 5 in respect
of pharmaceutical medicines for human purpose claiming user since 01.05.2002. The trade mark was advertised before acceptance in the Trade
Marks Journal No. Mega 2 dated 25.09.2003 at page 1196. The Appellant herein filed an opposition to the grant of registration on various grounds.
The 1st Respondent herein filed their counter statement denying the same. On completion of the formal procedures, the Assistant Registrar heard and
passed the impugned order with the finding that the two trade marks namely Anacin and Anzocin are phonetically and visually different and the
ground of concurrent user does not apply and that no doubt the onus of establishing that their trade mark i.e. Anacin has acquired reputation has been
proved, but the rival marks are different and therefore there was no confusion. He also held that the marks while pronouncing is also different. The
Registrar also observed that the 1st Respondent's impugned trade mark was restricted to territories of Punjab, Amritsar & Ludhiana and therefore a
corrigendum be issued.
4 . Aggrieved by the said order, the Appellants are before us on appeal on the grounds that they are the registered proprietor of the trade mark Anacin
as of 05.10.1947 under No. 131100 in Class 5. The mark has been in continuous use since then and has acquired a well known trade mark status. The
marks being similar are likely to cause confusion. The Appellants also stated that they are using the trade mark since 1947 and thus the trade mark
has acquired goodwill and reputation among the public. The Appellants further relied on various judgments in the grounds of appeal.
5 . We heard the counsel for the Appellant. The Learned Counsel Shri. Saikrishna Rajagopal appearing on behalf of the Appellant submitted that they
had adopted and used the trade mark for more than 50 years and they are the registered proprietors of the trade mark Anacin. In India they had been
using since the year 1947 and outside India since 1948. They have obtained registrations in various countries. The trade mark Anacin is a well known
trade mark.
6 . The 1st Respondent had applied for a similar trade mark Anzocin on 06.09.2002 claiming user since 01.05.2002. The registration is prohibited under
Section 9, 11 and 12 of the Act. The counsel then pointed out to the certificates issued by some doctors which were produced before the Registrar
and submitted that those certificate were given by Siddha doctors who do not prescribe allopathy medicines and so cannot be relied on.
The counsel then relied on the Cadila judgment AIR 2001 SC 1952 Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd. where the Supreme
Court had held that more care should be taken while granting registration as regards medicinal products are concerned.
8 . We have heard and considered the arguments of the counsel and have gone through the pleadings and documents.
9 . The Appellants have opposed the registration of the trade mark Anzocin on the ground that they are the registered proprietors of the trade mark
Anacin who had been using the same for more than 5 decades. The issue to be decided is as to whether the rival marks namely Anzocin and Anacin
are deceptively similar or phonetically and visually similar to cause confusion among the public. There is no doubt both the goods fall in the same class
of goods i.e. class 5 and the goods are medicinal products. The Appellants goods are tablets for pain relief whereas the Respondents goods are eye
drops.
As regards phonetic similarity we agree with the finding of the Assistant Registrar in the impugned order that ""while pronouncing Anzocin the
stress is on 'ZO', whereas in Anacin the stress is on 'ana' & cin is just slurred and thus as a whole sound different.
We have perused the documents filed by the Appellants where the Respondents carton has been produced and as well the Appellants packing
have been produced. The Respondents cartons bear the words eye drops below the mark and the Appellants mark has definitely the words Fast pain
relief. The writing style of the rival marks is also different. While the goods of the Appellant are in the form of tablets the goods of the Respondent is
liquid (eye/ear drops) so even the average consumer is not likely to be confused. Visually and phonetically too we do not find any similarity between
the two marks.
In view of the above, there is no infirmity in the impugned order to be interfered by us. Accordingly, the appeal is dismissed. The miscellaneous
petition is also dismissed as the appeal has been disposed of.