JUDGMENT
S. Jagadeesan, Chairman
1. The appellant filed this appeal against the order of the Deputy Registrar of Trade Marks, Chennai dated 25.01.02, The first respondent herein filed application No. 475406 on 17.7.87 for registration of trade mark label containing the device of Wavy lines predominantly in blue background and the word ZERO as its essential feature of the mark in respect of confectionary included in class 30. The said trade mark is proposed to be used on the date of the application. The application of the first respondent was advertised as accepted in the Trade Mark Journal No. 1078 (S) dated 8.5.94 at page 55. The appellant herein filed their opposition No. MAS-3162 on 5.9.94 opposing the application of the first respondent on the following grounds:-
(i) The appellants are the registered proprietors of the trade mark AERO in respect of cocoa, chocolates, confectionery and chocolate biscuits under the trade mark No. 8979.
(ii) First respondent’s mark ZERO is deceptively similar to the appellant’s trade mark AERO and the goods are of same nature.
(iii) The appellant being established user had built up reputation and the use of the disputed trade mark by the first respondent will result in confusion and deception.
2. The respondent filed their counter statement on 10.5.95 denying the averments made by the appellants and claimed that the impugned trade mark is distinctive and distinguishable from that of the appellant’s mark.
3. The parties have not led in any evidence. The Deputy Registrar of Trade Marks heard the counsel on either side and ultimately rejected the opposition of the appellant herein and allowed the application of the respondent for registration of their trade mark. Aggrieved by the same the first respondent filed an appeal TMA No.2/02 on the file of High Court of Judicature at Madras. The said appeal stood transferred to this Board pursuant to Section 100 of the Trade Marks Act, 1999 and numbered as TA No. 34/2003.
4. The learned counsel for the appellant contended that the impugned mark ZERO is visually and phonetically similar to that of the appellant’s trade mark AERO and as such the impugned trade mark cannot be registered as per Sections 9, 11 (a) and 12(1) of the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as the Act). Moreover, the goods of both the appellant and the first respondent being of the same nature, it will create confusion in the trade. The Deputy Registrar had considered the minute differences between the two trade marks and came to the conclusion that both are not identical. The Deputy Registrar while comparing the two trade marks had overlooked the principles laid down by the various High Courts as well as the Supreme Court that both the trade marks should be looked at in a lay man’s point of view and there cannot be any microscopic comparison of the two to find out the slight differences to come to the conclusion that both are dissimilar.
5. So far as the first respondent is concerned, their counsel reported no instruction and consequently we directed fresh notice to the first respondent for the hearing on 18.06.04. The said notice was served on the first respondent. Again a fresh notice was ordered for the hearing on 21.07.04 and the said notice was also served on the first respondent. There was no representation on behalf of the respondent.
6. We considered the arguments of the learned counsel for the appellant. The appellant in their opposition had stated that their trade mark AERO was registered under the laws of Siwtzerland at Avenue Nestle under No. 8979 and in India also their mark was registered in class 30 in respect of cocoa, chocolates, confectionary and chocolate biscuits. Now the short question is whether the impugned trade mark is similar to that of the appellant’s trade mark AERO and whether the use of the impugned trade mark will create confusion and deception in the trade.
7. Both the parties did not led in evidence before the Deputy Registrar which is clear from the following passage of the impugned order of the Deputy Registrar.
“The opponents were requested to file their evidence in support of opposition under Rule 53 of the Trade and Merchandise Marks Rules, 1959. Though such evidence was due to be filed by the opponents on 14th August, 1995, the opponents after taking extension of time from time to time finally informed the Registry by their Attorney’s letter dated 7th March, 1997 that the opponents do not propose to file any evidence in support of opposition but wish to rely on the notice of opposition. The applicant’s attention was drawn to Rule 54 of the Trade and Merchandise Marks Rules, 1959 to enable them to file evidence in support of application vide the Registry’s letter dated 1st April, 1997. The applicants did not file any evidence in support of application but desired to rely on the facts stated in their counter statement. The matter was therefore, set down for a hearing on 27th April, 2000 and in terms of Rule 59, the respective parties were required to notify on form TM-7 their intention to attend the hearing:
Hence it is clear that both the parties have relied upon the statement made in the opposition and the counter.
8. The appellant’s registered trade mark is AERO whereas the impugned trade mark of the respondent is ZERO. The first respondent’s impugned trade mark is a label containing the device of Wavy lines predominantly in blue background and the word ZERO as its essential feature whereas the appellant’s trade mark AERO is per se a word mark. When the similarity of the marks are to be considered the entire trade mark or the label has to be taken into consideration in toto for comparison. The trade mark of the first respondent is a label with colour scheme, that itself will make a difference. Apart from that the word ZERO and AERO cannot be phonetically similar. The initial letter ‘A’ and ‘Z’ makes all the distinctiveness. Hence we are of the view that the Deputy Registrar rightly found that both the marks are not phonetically as well as visually similar.
9. Though the trade mark of the appellant AERO and the trade mark of the respondent ZERO have got slight phonetical dissimilarity it cannot be ruled out totally that both are not similar. Only the first letter of both the trade marks differ. One start with the first letter of the alphabet and the other start with the last letter of the alphabet. When there is a slight phonetical similarity we have to consider the class of consumer as well as the traders or the purchasers or who deals with the products of both the appellant and the respondent. There is no dispute that both the products are of same nature, the confectionery goods. When that is so we cannot expect the educated class or the literate class alone are going to deal with the product. Illiterate class of people are also likely to deal with the products either as consumer by themselves or as purchaser for their masters. In such cases whether the label alone is sufficient to distinguish the goods of the respondent from that of the appellant is to be seen. In our view the illiterate class of people may not be able to make that much of subtle distinction and select the goods. Hence, definitely there will be a confusion and deception in the minds of the consumer as well as traders. Definitely the impugned trade mark of the respondent attracts Section 11(a) as well as 12(1) of the Act.
10. Though the Registrar had rejected the opposition of the appellant on the ground that they have not established the use of their trade mark by letting in any evidence, we are unable to agree with such view of the Registrar. As already pointed out both the parties have not let in any evidence and both have adopted the statement filed by them to be taken as the evidence. The appellant had stated that they are using the trade mark. The respondent had not made any specific denial of such averment of the appellant. When there is no specific denial of the averments in the statement of evidence of the appellant by the respondent, that statement has to be taken as unrebutted. It may be pertinent to note that the respondent had filed the application for registration on 17.07.87 and the same was advertised on 08.05.94 and thereafter the matter was heard. The first respondent did not produce any evidence for their use of the trade mark also. In that case the use of the trade mark has not been concentrated by both the parties and as such that cannot be the ground to reject the opposition of the appellant. Since we have already found that the trade mark of the respondent ZERO is almost identical to the appellant’s trade mark AERO and the use of the same would cause confusion and deception in the trade, we have to set aside the impugned order of the Registrar. Accordingly the appeal is allowed. The impugned order of the Registrar dated 17.07.87 in application No. 475406 filed by the respondent is set aside and the opposition No. MAS-3162 of the appellant is allowed and the application No. 475406 of the first respondent is rejected. However, there will be no order as to costs.