Case Note & Summary
The dispute arose when K.R. Chinna Krishna Chettiar, sole proprietor of Radha & Co., applied for registration of a trade mark for snuff consisting of a label with the picture of goddess Sri Andal and the legend 'Sri Andal'. The respondent, Sri Ambal & Co., a partnership firm also dealing in snuff, opposed the registration on the ground that the mark was deceptively similar to their registered trade marks, which included a label with goddess Sri Ambal and the word 'Sri Ambal', and a separate word mark 'Sri Ambal'. The Registrar of Trade Marks initially rejected the opposition, holding that the sounds were not sufficiently similar to cause confusion. The respondent appealed to the Madras High Court. A Single Judge reversed the Registrar, finding great phonetic similarity and imminent danger of confusion. This was upheld by a Division Bench. The appellant then appealed to the Supreme Court by special leave. The core legal issue was whether the appellant's mark 'Sri Andal' was deceptively similar to the respondents' 'Sri Ambal' under Section 12(1) of the Trade and Merchandise Marks Act, 1958. The appellant argued that the marks were visually distinct, conveyed different ideas of two separate goddesses, and that the Registrar's expert decision should not have been overturned. The respondent contended that the word 'Ambal' was the essential distinguishing feature, 'Andal' was phonetically equivalent, and that the average consumer with imperfect recollection would likely be confused. The Supreme Court dismissed the appeal, holding that in determining deceptive similarity, the marks must be compared as a whole with emphasis on their distinctive and essential features. The court found that 'Ambal' and 'Andal' had a striking affinity of sound, and while there was no visual resemblance, ocular comparison is not always decisive. The common prefix 'Sri' was subsidiary, and the distinguishing words were deceptively similar. The court rejected the argument that the different religious concepts would prevent confusion, noting that the customer base extended beyond those who would discern the sectarian nuances. The appeal was therefore dismissed, and the registration was refused, upholding the concurrent findings of the High Court.
Headnote
A) Trade Marks - Deceptive Similarity - Test of likelihood of deception - Trade and Merchandise Marks Act, 1958, Section 12(1) - The court must compare the competing marks as a whole and their distinctive and essential features, assuming fair and normal use in connection with the goods. The question is whether normal use of the proposed mark would cause a likelihood of deception. Held that the Registrar's contrary view was clearly wrong and there was deceptive similarity between 'Sri Andal' and 'Sri Ambal'. (Paras 293 F - 294 B) B) Trade Marks - Phonetic Similarity - Ocular comparison not decisive - Trade and Merchandise Marks Act, 1958, Section 12(1) - The words 'Andal' and 'Ambal' have a striking similarity and affinity of sound. The resemblance between marks must be considered with reference to the ear as well as the eye; visual dissimilarity does not negate deceptive similarity if the phonetic resemblance creates a real danger of confusion. (Paras 294 B - D) C) Trade Marks - Distinctive Feature - Essential word in composite mark - Trade and Merchandise Marks Act, 1958, Sections 2(j), 12(1) - In composite marks like 'Sri Ambal' and 'Sri Andal', the prefix 'Sri' is common and subsidiary; the distinguishing and memorable feature is the word 'Ambal' or 'Andal'. The difference in the religious ideas conveyed by the two goddess names does not eliminate the likelihood of confusion because the customers are not confined to Hindus of South India alone and may not recall fine sectarian distinctions. (Paras 294 E - 295 F) D) Constitution - Supreme Court Appeal - Onus on appellant - Constitution of India, Article 136 - In an appeal under Article 136, the appellant must show that the concurrent finding of the courts below that there is deceptive similarity is erroneous and that the conditions of Section 12(1) are not satisfied. The onus was not discharged here. (Paras 293 F - G)
Issue of Consideration
Whether the proposed trade mark consisting of the label with the word 'Sri Andal' is deceptively similar to the respondents' registered trade marks containing the word 'Sri Ambal' within the meaning of Section 12(1) of the Trade and Merchandise Marks Act, 1958.
Final Decision
The Supreme Court dismissed the appeal, holding that the proposed mark 'Sri Andal' was deceptively similar to the respondents' registered marks 'Sri Ambal' under Section 12(1) of the Trade and Merchandise Marks Act, 1958, and therefore refused registration. The Court upheld the concurrent findings of the High Court and held that the phonetic resemblance between 'Ambal' and 'Andal' created a real danger of confusion despite visual dissimilarity.
Law Points
- Legal points not extracted
- deceptive similarity test under Trade Marks Act
- 1958 s.12(1) considers fair and normal use and comparison of marks as a whole with emphasis on distinctive features
- phonetic resemblance is a decisive factor and ocular comparison is not always the decisive test
- the essential word in a composite mark fixes itself in the recollection of the average buyer
- in an appeal under Article 136 of the Constitution
- the onus is on the appellant to show that concurrent findings of courts below are erroneous
- the Registrar's expert opinion is not lightly disturbed but can be overturned if clearly wrong
- no evidence of actual confusion is necessary if real danger of confusion exists
