P. D. Sharma ( 1 ) MESSRS Kanwar Ayurvedic Pharmacy, Kanpur, a partnership concern through its partners Abinash Chandra Singh, Thakar Dev Dutt Singh and Thakar Ram Bharoaey Singh applied to the Registrar of Trade Marks under the Trade Marks Act of 1940 (hereinafter REFERRED TO as the Act) in three cases Nos. 156267, 156263 and 170741 on 12th November, 1952, for registration of Trade mark in class 5 in respect of medicines. The first applicatlon No. 156267 relates to a label on the centre of which appears most prominently the words "vedana Nlgrah Ras" in Devnagri characters. On the right hand corner of this lable is the picture of a woman. The name of. the petitioner-company also appears on this label. The second application No. 156268 is in relation to the words "vedana Ni?rah Ras" in Roman character. The third application relates to two labels, one in Devnagri character and the other in Roman character. On the centre of the labels the words "vedana Nigrah Ras" appear prominently. The device of pistol and mortar is depicted on the top left hand side of the labels. The name of the petitioner-company also is inscribed in the labels. ( 2 ) THE Trade Marks Registry after preliminary examination of the three applications objected to the registraion of the trade marks on the ground that the expression "vedana Nigrah Ras" which in fact formed the core of the Trade Marks was a descriptive term. The applications were made to lead preliminary evidence in order to establish a prima fade case which was done. The Trade Marks Registry as required under the Rules ordered that the three applications should be advertised before acceptance. The registration of the trade marks was to be confined to an area covered by the State of Uttar Pradesh and Bihar. It appears that the registration of the trade marks was not opposed by an outsider. The Trade Marks Registry as required under the Rules ordered that the three applications should be advertised before acceptance. The registration of the trade marks was to be confined to an area covered by the State of Uttar Pradesh and Bihar. It appears that the registration of the trade marks was not opposed by an outsider. ( 3 ) THE Assistant Registrar of Trade Marks before whom three aplications came up for final disposal, by a common order dated 15th 0ctober, 1963, dismissed them mainly on the grounds that the most prominent feature of the trade marks sought to be registered was the expression "vedana Nigrah Ras" which in ordinary parlance meant that the Ayurvedic medicine to which these words applied was for restraining or suppressing; pain and, consequently, had a direct reference to the character or quality of goods and failed to satisfy the requirements of section 9 (1) (d) of the Act and that the mere fact that the applicants had been using these trade marks since 1936 and that they had successfully fought cases against persons who used these trade marks did not matter much. The applicants felt aggrieved from the above order and filed three separate appeals Nos. 28. D and 29-D and 30-D of 1964 which shall be disposed of by this common judgment. ( 4 ) THE learned counsel for the parties conceded that the provisions of the Trade and Merchandise Marks Act, 1958, applied to the present cases. The applicants felt aggrieved from the above order and filed three separate appeals Nos. 28. D and 29-D and 30-D of 1964 which shall be disposed of by this common judgment. ( 4 ) THE learned counsel for the parties conceded that the provisions of the Trade and Merchandise Marks Act, 1958, applied to the present cases. Section 9 of this Act lays down the requisites for registration in Parts A and B of the register, relevant portions of which run as : "9 (V A trade mark shall not be registered in Part A of the register unless it contains or consists of at least one of the following essential particulars, namely :- * * * * (d) one or more words having no direct reference to the character or quality of the goods and not being, according to its ordinary signification, a geographical name or a surname or a personal name or any common abreviation thereof or the name of a sect, caste or tribe in India; * (2) A name, signature or word,other than such assail within the descriptions in clauses (a), (b), (c) and (d) of sab-section (1) shall not be registrable in Part A of the registrar except upon evidance of its distinctiveness (3) For the parposes of this Act, the expression "distinctive" in relation to the goods in respect of which a trade, mark is proposed to beregistered, means adapted to distinguish goods. with which the proprietor of the trademark is or may be connected in the course of trade from goods in the case of which no such connection subsists either generally or, where the trade mark is proposed to be registered subject to limitations, in relation to use within the extent of the registration. (5) In determining whether a trademark is distinctive or is capable of distinguisjhing aforesaid, the tribunal may have regard to the extent to which- (a) a trade mark is inherently distinctive or is inherently capable of distinguishing as aforesaid ; and (b) by reason of the use of the trade mark or of any other circumstances, the trade mark 19 in fact so adapted to distinguish or is in fact capable of distinguishing as aforesaid. * * * * " The main reason which influenced the Assistant Registrar of Trade Marks in refusing to register the trademarks in question was that the expression "vedana Nigrah Ras" which in ordinary parlance meant that the Ayurvedic medicine to which these words applied was for restraining or suppressing pain and, consequently, and a direct reference to the character or quality of goods and thus failed to fulfil the conditions provided in section 9 (1) (d) of the Trade and Merchandise Act, 1958. There is no dispute about the meaning of the words "vedana" and "ras". Vedana" means pain, ache, agony, and "ras" means juice, essence, extract or syrup etc. The dispute is about the meaning of the word "nigrah". The Assistant Registrar consulted Bhargavas Hindi English Diction-irv, where it is provided that "nigrah" means obstruction impediments, remedy, aversion, etc. He also REFERRED TO the meaning of this word as given in modern combined dictionary (Gujrati into English) by Oza and Bhatt as restraint. The third dictionary which he consulted was Aryabhushan School Dictionary Marathi English by S. G. Vaze, where the meaning of "nigrah" has been given as restraint or repression, binding, capture, seizure, arrest etc. It will thus be seen that the three dictionaries which the Assistant Registrar consulted give so many meanings to the disputed word "nigrah". In Hindi the word "nigrah" does not unequivocally mean remedy or restraint, the appellants on the other hand have placed on record sworn affidavits of Shri Durgapada Dutt, Shri Amitava Sinha, Shrimati Hashi Roy and Smt. Kanika Sen Gupta. The first of them gave out that the three dictionaries which he had consulted gave the meaning of the word "nigrah" as prahar, Dwanda, Bhartsana, Sashan, Lanchbana, Daman, Attyachar, Piran, punishment, prosecution, restrain or punitive force. He farther stated that from his experience as a Bengali teacher and Proof-Reader of Bengali books he could say that the expression "nigrah" had never been used in conjuction with "vedana" in the sense of reframing or suppressing pain. According to him the apt expression to mean pain remover is "vedana Nashi" or "nashini", "vedana Nivaiak", "vedana Prashami,. Shri Amitava Sinha, Shrimati Hashi Roy and Shrimati Kanika Sen Gupta also supported Shri Durgapada Dutta. According to him the apt expression to mean pain remover is "vedana Nashi" or "nashini", "vedana Nivaiak", "vedana Prashami,. Shri Amitava Sinha, Shrimati Hashi Roy and Shrimati Kanika Sen Gupta also supported Shri Durgapada Dutta. All these four persons who are authority on the subject categorically stated that the modern use of the word "nigrah" is not in the sense it has been interpreted by the Assistant Registrar. The latter in his order has not given due weight to their opinion which he should have done. Therefore, it will not be correct to say that the word "nigrah" is understood by the persons who buy the medicine in the sense given to it by the Assistant Registrar. It is well- nigh settled that in considering the question; whether the word has a direct reference to the character or quality of the goods, one must look at the word not in its strict grammatical significance, but as it would represent itself to the public at large who are to look at it and to form an opinion as to what it connotes. In this connection, reference may be made to the cases (1) Unani Dawakhana v. Hamdard Dawakhana and (2) J. L. Mehta v. Registrar of Trade Marks Thus the ground on which the Assistant Registrar refused to register the trade marks in the three cases indeed was not available. Further, it is in evidence that the appellants had been using these marks for a considerably long time and had also successfully fought cases in Courts to safeguard their rights. These facts also have their own probative value. For this and the above the impugned order of the Assistant Registrar cannot be sustained in law. ( 5 ) THE three appeals, therefore, are allowed and order of the Assistant Registrar is set aside. The Registrar of Trade Marks is directed in application No. 156267 to register the trade mark as it has been advertised and has not been opposed by any person. In application Nos. 156268 and 170741 the trade marks in question are accepted. The Registrar is directed to proceed further in the matter according to law. No order as to costs.