JUDGMENT
Pradeep Nandrajog, J.
1. Petitioners Smt. Shakuntala Monga and others have filed the present petition challenging the order dated 27th September, 1993 passed by the Registrar of Trade Marks rejecting their opposition to the registration of the trade mark applied for by the respondent.
2. On 5th May, 1978, the respondent filed an application registered as No. 336284 for Registration of Trade Mark consisting of letters “N.M.W.” and the word
“HIRAMAN” in Class-6 for the goods ‘locks and pad-locks’. It was claimed that the respondent was using the said trade mark since the year 1974. Disclaimer in respect of the letters “N.M.W.” was given by the respondent and eventually the application was advertised in the Trade Mark Journal. Petitioners lodged a notice of opposition on 17th December, 1980 objecting to the registration on the ground that they were the registered proprietors of the trade mark “HARRISON” vide the Registration No. 195667 in respect of locks and pad-locks. They were continuously using the trade mark in the course of trade and had huge volume of work. The impugned mark of the respondent was alleged to be similar to that of the petitioner and, therefore, it is claimed that under the Trade and Merchandise Marks Act, the same could not be registered.
3. The Registrar of Trade Marks held that the word “HIRAMAN” was neither phonetically nor visually deceptive with the word “HARRISON” and therefore rejected the objection filed by the petitioners and proceeded to register the trade mark.
4. Shri Manmohan Singh, learned counsel for the petitioners contended that under Section 2(1)(d) of the Trade and Merchandise Marks Act, 1958, a mark shall be deemed to be deceptive similar to another mark if it so nearly resembles with other mark so as likely to deceive or cause confusion. Counsel contend that Section 11 of the Trade and Merchandise Marks Act, 1958 prohibits the registration of a mark the use of which would be likely to deceive or cause confusion. Section 12(1) of the Act was pressed in aid to contended that the trade mark cannot be registered in respect of goods which is identical with or deceptively similar to a trade mark which is already registered in the name of a different proprietor in respect of the same goods or description of goods. Counsel relied upon the judgments Bombay Oil Industries Pvt. Ltd. v. Ballarpur Industries Ltd., , Amritdhara Pharmacy v. Satya Deo Gupta, 62 RPC 1945 page 65 and 2003 (26) PTC 52 (Del) Chanel Ltd. v. Sunder Chemicals Agarbati Works (P) Ltd. and Anr.
5. I have considered the submissions and perused the judgments cited. In the judgment of Bombay Oil Industries Private Limited, it was held that the mark “SAFFOLA” was phonetically similar with the word “SHAPOLA” and both being in respect of edible oils, “SAFFOLA” was deceptively similar with “SHAPOLA”. In the judgment of Amrithdhara Pharmacy, it was held that the word Lakshmandhara was deceptively similar to the word Amritdhara. In 62 RPC 1945 (P. 65) the mark “RYSTA” was held closely remembering the mark “ARISTOC”. In the last judgment cited the mark “SHANELLE” was held to be phonetically similar with the mark “Chanel”.
6. It is, thus, to be noted that in the judgments cited by the learned counsel for the petitioners a categorical finding was arrived at, that there was phonetic similarity.
7. It is no doubt true that while applying the test of deceptive similarity one has not to place the two trade marks side by side and then compare the two. The test is on the basis of the recollection by a common man with imperfect memory. Tested on the said principle, can it be said that the word “HARRISON” is deceptive, similar to the word “HIRAMAN”. Phonetic similarity is clearly ruled out. In my opinion, there is no question of there being any visual similarity as the two marks are quite distinct from each other. It cannot be said that a person seeing the product of the respondent being marketed under the trade mark “HIRAMAN” would confuse it with the product of the petitioners which is being marketed under the trade mark “HARRISON”. The findings, therefore arrived at by the Registrar of Trade Marks cannot be held to be perverse or beyond jurisdiction. No interference is called for. The petition is dismissed. No Costs.