Anantanarayanan, J.— This is a Letter Patent Appeal by K.R. Chinnikrishna Chettiar from the judgment of Jagadesan, J., in C.M.A. No. 266 of 1961 ; we might very briefly state that the appeal before the learned Judge was by Sri Ambal & Co., Madras (here the respondent) from the order of the Assistant Registrar of Trade marks, dismissing the opposition of Sri Ambal & Co., to the application of the present appellant for registration of a trade mark submitted by him. The second respondent before the learned Judge was the Assistant Registrar of Trade Marks, Madras. In an elaborate judgment, in which the facts are extensively set forth and several authorities cited and discussed, the learned Judge allowed the appeal and set aside the order of the Assistant Registrar registering the trade mark submitted by the appellant before us. A considerable area of the controversy can now be segregated from the scope of the discussion. For instance, the learned Judge has described both the pre-existing mark or design of the respondent (Sri Ambal & Co.), as well as the mark of the appellant. The respondent company had actually two register entries, No. 126808 consisting of “ a label having the device of Goddess with a trident perched on a globe floating on water in a circular frame” . The top of this label bore the legend “ Sri Ambal Parimala Snuff”. The other entry No. 146291 was not a visual design, but consisted of the expression “ Sri Ambal” . The present appellant’s mark is thus described. It is a “ label of three panels” or divisions ; the mid or central panel contains the picture of Goddess alleged to be that of Sri Andal, and the legend ‘Sri Andal ‘. The top and bottom panels contain the words “ Sri Andal Madras Snuff” in Tamil, Devanagiri, Telugu and Kannada script and character. It is now not within the scope of controversy that there is any deceptive resemblance between. the two lables, or that, from the point of view of the visual test, the mark of the appellant sought to be registered offends the canons of trade mark registration by any affinity of line or forms, or the totality of a semblance. This was the finding of the Registrar himself, and it is the finding of the learned Judge in unequivocal terms. This was the finding of the Registrar himself, and it is the finding of the learned Judge in unequivocal terms. The learned Counsel for the respondent (Sri Thyagarajan) does not seek to contend that, in this respect, the learned judge has overlooked any element of design which was likely to confuse, or that his broad conclusion is erroneous. Consequently, it may be taken as established that the true controversy is between the registered mark of the respondent “ Sri Ambal” and the mark of the Appellant sought to be registered, which is not an expression but a visual design,, but which incorporates “Sri Ambal” as an integral part thereof. In other words though the case-law upon this entire subject is not merely extensive and prolific, but almost bewildering in the multiplicity of instances that have come up for consideration before Courts, the decisions that closely impinge upon the issue adumbrated before us are not very many. The issue may be expressed in the following form Where the controversy arising from an action for infringement, that is, in the form of appeal against the registration is essentially between a pre-existing trade mark consisting of an expression, which has acquired significance by close association with the goods of the proprietor of the mark, and a visual design which incorporates another expression as a part thereof, what are the principles upon which the matter should be determined? When the two expressions are not identical, but phonetically both similar and dissimilar can the party seeking registration contend that the dissimilarities should be given weight, particularly because the supposed offending expression is not sought to be registered by itself, but as some part of a visual design which in no way bears a deceptive resemblance to the visual design of the proprietor opposing registration? Is it a defence that the goods, distinguished by the two marks have circulated side by side, in identical places of business, without causing confusion or deception with reference to the customers ; and has adequate evidence been adduced by the appellant, in substantiation of such a defence ? These are the vital questions arising in this appeal. At the outset itself, a certain clearance has to be effected of issues that are not central to the controversy, but which do appear to have taken up a considerable part of the time and the record. These are the vital questions arising in this appeal. At the outset itself, a certain clearance has to be effected of issues that are not central to the controversy, but which do appear to have taken up a considerable part of the time and the record. For instance, the learned judge (Jagadisan, J.) was, himself much exercised by an argument that he ought not to lightly interfere, reversing the order of the Registrar with regard to the mark of the appellant before us, as that official must be presumed to have acted not merely in a fair and impartial manner, but also after having weighed the pros and cons in the light of trade conditions and trade experience. The learned Judge cites a passage from Union Carbide and Carbon Corporation’s Application to Register a Trade Mark1 where Lloyd Jacob, J., observed that even if he thought that he would come to a different conclusion, he should still respect the decision of the Registrar. After referring to certain other authorities also, including the dicta of Farewell, J., in Eccotiko’s Case2, the learned Judge finally pointed out that there is no presumption that the Registrar by virtue of his office and experience in the area of trade mark claims and the law, is necessarily right. The learned Judge stated: “The Registrar of Trade Marks does not occupy a better position than subordinate civil Courts.” We find no hesitation in affirming this perspective of approach ; indeed, any other would negate the statutory remedies provided for against registration. The duty is that of the Court, and the Court alone, and it cannot shirk that duty by treating the conclusions of the Registrar as sacrosanct unless it can be shown that they were manifestly opposed to law, or erroneous on the face of the record. Again, now that the pictorial designs can be conveniently excluded, the test of phonetic similarity is one which has to be applied on the very broad principles expounded by Parkar, J., in In the Matter of an application by the Pianotist Company Ltd., for the Registration of a Trade Mark3. The words have to be judged both by appearances where both are incorporated in visual designs, ana also by phonetic affinities. The nature of the goods to which they are to be applied, and the nature and kind of customers who might buy such goods, are all relevant circumstances. The words have to be judged both by appearances where both are incorporated in visual designs, ana also by phonetic affinities. The nature of the goods to which they are to be applied, and the nature and kind of customers who might buy such goods, are all relevant circumstances. Again, the test is that of a customer who knows only one of the two expressions, namely, the pre-existing Sri Ambal in this name, and might have only an imperfect recollection of it, when demanding his favourite brand. It could certainly be argued that the two words are widely different in their connotation and significance. As every one acquainted with the tenets of Hindu religion, even to a vague and general extent, must be aware, Sri Andal was a Vaishnavite woman sait of Srivilliputhur, who was later practically deified because of her union with the Lord Ranganatha ; while Sri Ambal is even more widely known as the name of the Consort of Siva or Maheswara. But it is clear that this line of defence cannot really help the appellant, for two important reasons. Firstly, while it is true enough that in certain English cases the background of knowledge of the customer has been given some weight, that is no invariable rule or essential principle. It is true that Parker, J., observed in In the Matter of an application by the Pianotist Company Ltd.3 “Of course one knows that the persons who buy these articles are generally persons of some education............and some consideration is likely to attend the purchase............Now my opinion is that, having regard to the nature of the customer, the article in question, and the price at which it is likely to be sold............no man of ordinary intelligence is likely to be deceived.”, But, as their Lordships of the Supreme Court have recently pointed out in A. Parampey v. Satra Das Gupta1, in holding that the registration of ‘‘Lakshmandhara “ should be declined because of similarity in sound to the per-existing mark” Amritdhara “ the question is of the likelihood of deception by the” overall and phonetic similarity of the two names “. It is true that the words referred to totally different ideas or images ;” Lakshmandhara “ implied” the current or flow of Lakshman “ and” Amritdhara “ implied” the flow of nector“. It is true that the words referred to totally different ideas or images ;” Lakshmandhara “ implied” the current or flow of Lakshman “ and” Amritdhara “ implied” the flow of nector“. But on this very argument their Lordships observed as follows: ”An ordinary Indian villager or townsmen will perhaps know Lakshman, the story of Ramayana being familiar to him ; but we doubt if he would etymologise to the extent of seeing the so-called ideological difference between “ Amritdhara” and “ Lakshmandhara” . He would go more by the similarity of the two names in the context of the widely known medicinal preparation which he wants for his ailments“. There is another branch or limb of the same argument, which negatives the contention of the appellant that the widely different significances of the two expressions” Sri Andal “ and” Sri Ambal “ in Hindu Religion and mythology should be given weight, in any decision about deceptive resemblance. This is that the respondent firm has been in the snuff business for decades, with far flung centres of activity inside and outside Madras State. Their customers are by no means confined to Hindus alone, on the contrary, as the record appears to indicate their customers equally comprise Christians, Parsees, Muslims and persons of other religious denominations ; this is not seriously disputed. Actually, a clear acquaintance with the history of Vaishanavite Saint Sri Andal may not provail in regions remote from the South. Before we proceed to the basic question of phonetic affinity, which alone has to be judged by us, we have to elucidate the problem in this case, that the controversy is between an expression registered as a trade mark on the one hand, and an expression which is not identical, and which is part of a dissimilar visual design on the other, for which registration is sought, in the light of the available authorities. We may initially observe that, where the marks relate to the same class of goods: ”The general principle is to refuse if there is any possibility of confusion in fair or normal use......A mark will be rejected if there is liability to confusion by eye or ear, and further whether the marks may suggest the same idea, or tend to the goods being described by the same name.“ (Halsbury’s Laws of England (Hailshem Edition) Vol. 32, section 873, pages 565-566.) This is important for the supposed offending mark is not an expression, but is incorporated in a dissimilar visual design. Hence the first question is: Whether it is so essentially an intergral part of that design, that its phonematic affinity to the registered mark (expression) of the respondent company must necessarily be considered by Court? In this connection it is interesting to note that in the case of "Navola “, In the Matter of Savage’s Application for the Registration of Trade Mark,2 the Court held that though” Navola sounded different from “ Nujol” , in certain respects, still decoptive resemblance and confusion might arise “ as the two words have a general resemblance to one another, suggestive of the same origin, and each commences with the same prefix ‘Na”. A very instructive case, where the facts were practically identical, is Do Cordova and others v. Vick Chemicul Coy.3. As is clear from the Appendix printed in the same volume at page 270, the Jamaican Trade Mark No. 1852 registered by Vic Chemical Company was a design, but Jamican Trade Mark No. 3707 consisted merely of the expression “ Vaporub” whereas the opposite party sought to register two visual designs (page 226) incorporating "karsote Vapour Rub". Though the contest was thus between an expression and a design, the essential part of the design was held to offened. Lord Radcliffe said: “A trade mark is undoubtedly a visual device; but it is well-established law that the ascertainanent of an essential feature is not to be colour test alone. Since words can form part, or indeed the whole, of a mark, it is impossible to exclude consideration of the sound or significance of those words.” We can certainly exclude the word "Sri" in either mark, and it is not an essential part of the design of the mark of the appellant, being a prefix universally employed. But "Andal" is an essential part of the design, and is indisputably the characteristic application of the snuff marketed by the appellant. That there are some (phonetic) dissimilarities between " Ambal " and " Andal ", nobody can. dispute. But "Andal" is an essential part of the design, and is indisputably the characteristic application of the snuff marketed by the appellant. That there are some (phonetic) dissimilarities between " Ambal " and " Andal ", nobody can. dispute. But the expression "Andal" being an essential part of the design of the appellant, the question is whether the two expressions, considered in totality and effect have such an affinity of sound that they are likely to deceive an average, not highly literatate and unwary customer? Upon this aspect, it appears to us that the other instances in the case-law, where words sounding somewhat different have either been held to infringe, or not to infringe, can hardly be of great guidance But we would also like to refer, in this context, to Benedictus v. Sullivan Powell and Co.1 for that was a case in which a pre-existing mark and visual design’ In Flor de Margarettu’ have been reproduced (page 27) and the defendants were taxed with having sold cigars under the title of’ Margarita ‘omitting the words’ In Flor de and there being no other question of visual resemblance ; nevertheless, the Court held for the infringement. We might also refer to Aristoc v. Rysta Ltd.2 ; it was held that the mark "Aristoc" phonetically similar to "Rysta" for the registration to be accepted. In Saville Perfumery Ltd. v. Jone Perfect Ltd. and F.W. Woolworth and Co., Ltd.3, the word "June" in special script was an essential feature of the registered mark of the plaintiff (design) and it was held that the sale by the defendants of perfumery and toilet goods by any name containing the word " June " was likely to deceive. Upon this particular aspect, after giving the matter his careful consideration, the learned Judge (Jagadisan, J.) expressed himself as follows: — "The words Ambal and Andal have such great phonetic similarity that they are indistinguishable having the same sound and pronounciation. In whatever way they are uttered or spoken, slowly or quickly, perfectly or imperfectly, meticulously or carelessly and whoever utters them............wherever they are uttered, in the noisy market place or in a lonely secluded area, over the phone or in person, the danger of confusion, between the two phonetically allied names is imminent and unavoidable". After giving this matter our most careful consideration, and having given every weight to the phonetic dissimilarities stressed by Mr. After giving this matter our most careful consideration, and having given every weight to the phonetic dissimilarities stressed by Mr. K. Raja Iyer for the appellant, we are constrained to conclude that the phonetic affinity likely to deceive does exist, and that it cannot be dispelled by any more arguments of the expressions, or certain variant letters. The broad conclusion of the learned Judge must therefore be upheld by us. But there is another aspect of the case, which has to be very carefully considered in the light of the record. This aspect is quite different from the problem of "honest concurrent user" dealt with by the learned Judge with reference to section 12 (3) of the Act ; though related to it, this possible confusion must be cleared at the outset itself, for the argument to be made plain. On this question, Sri Raja Iyer for the appellant does not seek to canvass the findings of the learned Judge that the plea of "honest concurrent user" under section 12 (3) of the Act, could not be held established. Indeed, even the Registrar, who found in favour of the appellant, finally observed, after a discussion of the extensive record (invoices, statutory declarations etc.,) that on Issue 3 (issue of honest concurrent user under section 12 (3), he would have to record a finding against the appellant. But the entire question of concurrent user, is put forward in a different form, as a fact, which if established, would justify this Court in allowing the appeal, by deciding against the factor of deceptive resemblance. The situation on this aspect can be set forth as follows: — In Karly on Trade Marks (Eighth Edition) page 422 the following observation; occurs, with regard to an appreciable catena of decided cases: "But where the marks have been circulating side by side in the market where deception is alleged to be probable, the fact that no one appears to have been mislead is very material, unless, the absence of such evidence is satisfactorily explained". In the Trade Marks Act by Venkateswaran (1945 Edition) at page 180, the matter is expressed thus: "Where it is alleged that a mark is calculated to deceive by reason of its similarity to another mark and both the marks had been used for several years, without deception or confusion, the Court may hold that the onus was discharged." From the many citations which are available on this aspect, the following are instructive, as illustrating the scope and incidence of the principle. In Christianism’s Trade Mark1 the Court observed: "If you did prove as a fact that this had been used for years and if you could prove and did prove that nobody ever has been deceived, that would go to a great way certainly to modify one’s own opinion............" In Lamberts’ Trade Marks2, the Court put the matter in this form: "............though I do not hold for a moment that proof of actual deception is essential yet the absence of it when it might have been proved is a matter deserving consideration." See also in Baker and Rawmen3. In In the Matter of Talbot’s Trade Mark4, the Court said: "No evidence is given of any one having been deceived during the seven years which have passed since the respondent’s mark was first registered. It seems to me, having regard to that, I cannot come to the conclusion of fact that it is calculated to deceive". The other authorities are: In the matter of Holbrooks Ltd. Application for Registration5 Column & Co. Ltd. v. Stephen Smith & Co.6 and Electrolux Ltd. v. Electrix and another7 In the last case Sir Raymond (later Lord) Evershed, M.R. Stated: "............where the evidence is that there has been no confusion, that is (as it seems to me) a material matter which the Judge must take into account in deciding for himself aye or no whether the one mark is likely to lead to confusion with the other". Thus, this is an element of great importance in the evidence, and it might well be decisive for or against the appellant. It is not now necessary for us to deal with the two postcards attempted to be proved in evidence by the respondent company, as establishing deception between the two brands amongst the customers of " Ambal snuff" for that evidence has been rejected by the learned Judge (Jagadesan, J.) himself. It is not now necessary for us to deal with the two postcards attempted to be proved in evidence by the respondent company, as establishing deception between the two brands amongst the customers of " Ambal snuff" for that evidence has been rejected by the learned Judge (Jagadesan, J.) himself. But the appellant company did attempt to prove, by a number of affidavits, that in the same place of business where both the firms carried on trade, customers were perfectly able to distinguish ‘Andal ‘snuff from ‘Ambal ‘snuff and that there was no deception or element of confusion. If this has been proved by the evidence of agents and customers, and also by invoices and records of sale, it would indeed be significant, and might be a material factor in influencing the Court upon the issue of deception and similarity of sound between the two marks. But, on proceeding carefully into this aspect, we are compelled to arrive at the conclusion that this evidence ought not to be given weight, in the circumstances under which it was adduced, and that what remains of it, which was properly adduced, is vague and worthless. Thus, we have no doubt the affidavit of Sri K. R. Chinnikrishna Chetty (appellant) refers to this aspect in para 11 but it is so vague as to be useless — no particulars of the places, the periods, or the figures of concurrent user without deception are given. The same observations apply to the averments in para 11 of the affidavit of the Manager Sri K. Ratnam. There are no doubt, a number of other affidavits on this aspect of concurrent user without deception. But we are compelled to conclude that they were put into the evidence improperly, and without an opportunity to the opposite party to rebut them, either by the cross-examination of the makers or in any other mode, or even to be properly acquainted with their contents, that they were sought to be exhibited and acted upon at the very late stage of arguments before the Registrar, and that in consequence, they ought not to be considered at all by us, consistent with the principles of natural justice. In this matter, it appears evident to us that the Registrar was in error in treating them as exhibits, which were properly filed under Rule 54 of the Trade and Merchandise Marks Rules, so that it would be sufficient that the originals were produced at the hearing, and that a letter was sent to the learned Counsel on the other side that inspection could be had “ at the Madras Registry of the copies of the declarations filed as Exhibits.” On the contrary, these affidavits themselves form substantive evidence, as permitted by the Act and the Rules, on one vital aspect namely, that of honest concurrent user, without causing deception, and the matter is really governed by rule 54, which relates to evidence adduced in support of the application, and which runs as follows: — “Within two months from the receipt by the applicant of the copies of the affidavits in support of the opposition or of the intimation that the opponent does not desire to adduce any evidence in support of his opposition, the applicant shall leave with the Registrar such evidenc by way of an affidavit as he desires to adduce in support of his application, and shall deliver to the opponent copies thereof, or shall intimate to the Registrar and the opponent that he does not desire to adduce any evidence but intends to rely on the facts stated in the counter statement and or on the evidence already let by him in connection with the application in question. In case the applicant relies on any evidence already let by him in connection with the application, he shall, deliver to the opponent copies thereof.” Sri Raja Iyer does not seek to argue that rule 54 is not the rule applicable, or that those affidavits were produced under such circumstances as will fix the other side with a fair notice of this evidence, in compliance with rule 54. Excluding this evidence, therefore, there is no evidence which, on this aspect, could persuade us to come to any different conclusion. The net result, therefore is that the Judgment and decree of the learned Judge must be upheld and the appeal be dismissed. We might state that, at the stage of arguments before us, there was some attempt made to have an agreement upon a different appellation for the goods of the appellant, the visual design being unexceptionable. The net result, therefore is that the Judgment and decree of the learned Judge must be upheld and the appeal be dismissed. We might state that, at the stage of arguments before us, there was some attempt made to have an agreement upon a different appellation for the goods of the appellant, the visual design being unexceptionable. Finally, the appellant has filed C.M.P. No. 8934 of 1962 before us, expressing his intention to amend his trade mark by substituting the words “Radha Sri Andal” for “ Sri Andal”. The appellant prays to permit the amendment of the application, and that we may direct the Registrar to notify the amendment and to proceed with the application for registration — 183961 — according to law. We think it is sufficient to observe that — phonetically speaking “Radha Sri Andal” appears to its to be a different appellation altogether, with widely varying structural and phonetic components. But for the notification of this amendment, and the further conduct of the application are not matters within the scope of the appeal and it does not appear necessary to pass any specific orders thereon. It will be open to the appellant to apply to the Registrar for appropriate relief. The Letters Patent Appeal substantially fails, and respondent will have costs here. No order as to costs before the learned Judge. P.R.N. ----------- Appeal dismissed.