S. K. Kapur ( 1 ) THIS is an appeal under section 109 of the Trade and Merchandise Marks Act, 1958, against the order dated 9th July, 1963, passed by Assistant Registrar of Trade Marks. ( 2 ) ON 27th July, 1960 Bridgestone Company (Private) Ltd. New Delhi (hereinafter REFERRED TO as the appellant-company) made an application No. 197143 B for registration of a trade mark in para "a" of the Register in clause (12) in respect of a specification of goods which when subsequently amended read as bicycles and parts thereof included in clause (12), but not including rubber tyres and tubes . The mark consisted of the word bridgestone . The appellant-company claimed to have used the mark since 1st July 1960. On the examination of the application in the Trade Mark Registry, an objection was taken that the mark was not registerable in para a of the Register. Subsequently at the request of the appellant-company the application was converted to one for registration in part b of the Register. It was thereafter advertised as such in the Trade Marks Journal dated 1st May 1961. On 24th July 1961 M/s. Bridgestone Tyre Company Ltd. of Tokyo, Japan filed a notice of opposition. The Assistant Registrar, Trade Marks after observing that the only issue requiring decision in the case was whether section 11 (a) was not a bar to the registration of the mark of the appellant-company, upheld the objection and refused the application of the appellant-company. The principle question for consideration is whether the appellant-company was entitled to registration of the mark in view of section 11 (a) of the Trade and Merchandise Mark Act 1958. The sole criteria requiring determination for decision on this question is the likelihood of deception or confusion. The test generally adopted is whether, having regard to the use made of the objector s mark and the inference to be drawn from its use, confusion is likely. Confusion may arise (1) as to the marks themselves, visual or phonetic or (2) as to the origin of the goods. Confusion as to the trade source may arise where the two marks are identical even though the goods on which they are used are not the same but only closely related. Confusion may arise (1) as to the marks themselves, visual or phonetic or (2) as to the origin of the goods. Confusion as to the trade source may arise where the two marks are identical even though the goods on which they are used are not the same but only closely related. For instance, a use of similar trade mark with respect to spirits on the one hand and wine on the other may lead to a confusion because the public might be induced to believe that the commodities have a common origin. A similar situation may arise where the goods are identical and the marks have points of similarity. In the present case the opposition by the respondent was based on the ground that they had acquired reputation with respect to mark bridgestone on rubber tyres and tubes and if the appellant-company s mark is registered with respect to bicycle and parts thereof not including rubber tyres and tubes , there is every likelihood of ordinary persons entertaining reasonable doubt that the goods of the appellant-company owe their origin to the respondent-company. It is true that it is not necessary, in order to find that a mark offends against section 11, to prove that there is an actual probability of deception lending to a passing off. It is sufficient if the result of user of the mark be that a number of persons are caused to wonder whether it might not be the case that the two products come from the same source. ( 3 ) IT is, therefore, necessary to consider whether the respondent- company has established their reputation with respect to their goods. If it be held to have established a reputation with respect to heavy duty tyres and tubes it may not be sufficient, in my view, to carry them through. The Court has to be satisfied not merely that there is a possibility of confusion but that there is a real tangible danger of confusion by registering a mark sought to be registered. Establishing trade reputation with respect to heavy duty tyres and tubes would not, in my opinion, be sufficient because bicycle parts other than tyres and tubes can neither be said to have trade link with, nor termed as goods of the same description as heavy vehicle tyres and tubes. Establishing trade reputation with respect to heavy duty tyres and tubes would not, in my opinion, be sufficient because bicycle parts other than tyres and tubes can neither be said to have trade link with, nor termed as goods of the same description as heavy vehicle tyres and tubes. In re: Ladislas Jallinek s application, the applicant made an application to register the device of a panda together with the word panda in clause (3) for shoe polish. The application was opposed by a proprietor of a similar panda mark registered in respect of shoes. The objectors contended that having regard to their own registration it would be in contravention of sections Hand 12 (1) if the applicant s mark was allowed to be registered. They alleged that shoe polish was within the same description of goods as boots and shoes , that a number of shoe manufacturers marketed shoes and shoe polish under the same mark and that if the applicant was allowed to register his mark, his shoe polish would be believed by the public to be the manufacture or merchandise of the objectors. Romer J: held that the shoes and shoe polish were not the goods of the same description and would not offend section 12 (1) and there was no likelihood of confusion within the meaning of section 11 because the objectors had failed to establish reputation amongst the public for shoes under their mark. In Corn Products Refining Company v. Shangrila Food. Products Limited, the respondent a manufacturer of biscuits made an application for registration of the mark gluvita in respect of the goods specified in clause (30 ). The appellant a corporation registered in the United States had registered the mark glucovita under the Act in clause (3) in respect of dextrose (D. Glucose power mixed with vitamins), a substance used as food or as an ingredient in food . The appellant, therefore, opposed the respondent s application. The learned Judges of the appellate Bench of the Bombay High Court took the view that there was no evidence that the appellant Company s mark had acquired any reputation among the public. On the other hund, the evidence showed that it had acquired reputation only among the trades people, who were discerning and not likely to be confused. The learned Judges of the appellate Bench of the Bombay High Court took the view that there was no evidence that the appellant Company s mark had acquired any reputation among the public. On the other hund, the evidence showed that it had acquired reputation only among the trades people, who were discerning and not likely to be confused. In the result, the learned Judges decided that the mark of the respondent company was not likely to confuse or deceive anyone. The appellant company went up in appeal to the Supreme Court. Their Lordships of the Supreme Court held that the reputation should attach to the trade mark and it should appear that the public associated that trade mark with certain goods. The criteria was the reputation of the trade mark and not of the maker of the goods bearing that trade mark. Dealing with the contention that the goods were not of the same description, Sarkar J. said- "but there is evidence that glucose is used in the manufacture of biscuits. That would establish a trade connection between the two commodities, namely, glucose manufactured by theappellant and the biscuits produced by the respondent. An average purchaser would, therefore, be likely to think that the respondent s gluvita biscutis were made with the appellant s glucovita glucose. This was the kind of trade connection between different goods which in the black Magic case (In re: an Application by Edward Hack) was taken into consideration in arriving at the conclusion that there was likelihood of confusion of deception. . . . . . . . . " ( 4 ) THE question whether or not the two marks are likely to give rise to confusion is always a question of first impression. If the appellant company had asked for registration of trade mark with respect to cycle tyres and tubes, I would have had no hesitation in holding, that evon though no reputation had been established by the respondent company with respect to the cycle tyres and tubes, but had established reputation only with respect to the heavy duty motor vehicle tyres or tubes, there was a possibility of a confusion as the goods would in that case be described as having a trade connection or of more or less similar description. In deciding the question of similarity between two marks, one has to approach it from the point of view of a man of average intelligence and of imperfect recollection. Such a man may, no doubt, feel that the trade origin of cycle tyres and tubes is the same as that of heavy vehicle tyres and tubes. It is well to remember that absolute identity of two competing inarks or their close resemblance is one of the tests for determining the question of deception. It is also equally well recognised that trade connection between different goods also provides an important and independent test for the determination of the issue. What is then the position here ? As the discussion on evidence hereafter will show the respondent has established no reputation with respect to the cycle tyres and tubes. Can it then be said that the test of trade connection between cycle parts other than the tyres and tubes and heavy vehicle tyres and tabes is satisfied ? My careful consideration tells me that it is not. In Damell (J.) and Sons Limited s, application for a trade mark, the said company had applied to register a trade mark consisting solely of word excella in respect of a specification of goods boots, shoes and slippers . The application was opposed by the proprietors of a mark excello registered in respect of stockings and socks . As the marks were practically identical, the only question that fell for consideration before the Assistant-Controller was whether the goods to which the marks would be applied were of the same description. The consideration proceeded on the assumption that both classes of goods were, to some extent, sold in the same shop over the same counter and to the same class of customers. The opposition was dismissed on the ground that boots, shoes and slippers were not goods of the same description as stockings and socks. ( 5 ) I now turn to the position of evidence in this case. The Assistant Registrar s findings may be read in his own words. He held- "the goods in respect of which the opponent s mark is used are rubber tyres and tubes for vehicle wheels including tyres and tubes tor bicycle wheels and the goods in respect of which the applicant s mark is used are bicycles and parts thereof, but not including rubber tyres and tubes. He held- "the goods in respect of which the opponent s mark is used are rubber tyres and tubes for vehicle wheels including tyres and tubes tor bicycle wheels and the goods in respect of which the applicant s mark is used are bicycles and parts thereof, but not including rubber tyres and tubes. Thus it will be seen that the goods in respect of which the two marks are used are not the same. The opponent s goods rubber tyres and tubes do not appear to be very similar to bicycle parts excluding rubber tyres and tubes , because the nature of the goods are different, the manufacturers are different, the raw materials used for their manufacturers are different, one cannot be used as a substitute for the other. However, the matter for consideration under section 11 is not merely whether there would be confusion between the goods of the applicant and those of the opponent- but whether there would be any likelihood of confusion as to their trade origin. In this particular case, it cannot be overlooked that tyres and tubes form part of bicycles and that the class of purchasers in both the cases is the same. Further in many cases all these goods are sold in the same shop * * ". It is not without extreme reluctance, having regard to the vast experience of Assistant Registrar of Trade Marks in such matters that I regretfully express my dissent from his approach to the problem. The evidence discloses that the respondent company has established its reputation only with respect to the heavy vehicle tyres and tubes and not with respect to bicycle tyres and tubes. In that situation it is difficult for me to uphold the finding that there could be confusion as to trade origin between heavy vehicle tyres and tubes and "bicycle parts other than rubber tyres and tubes". The Assistant Registrar rightly placed no reliance on the affidavit of Kazuo Uryu on the ground that the sale figures represented sale under two different marks and were, therefore, of no assistance in proving their reputation of the mark bridgeston . I endorse his view fully on this point. Then there is an affidavit of Mr. Dady Ardesir Katrak. The Assistant Registrar rightly placed no reliance on the affidavit of Kazuo Uryu on the ground that the sale figures represented sale under two different marks and were, therefore, of no assistance in proving their reputation of the mark bridgeston . I endorse his view fully on this point. Then there is an affidavit of Mr. Dady Ardesir Katrak. In his affidavit, he says that "bridgestone" are manufacturers of rubber tyres and tubes for wheels of motor vehicles, particularly buses and trucks and also for bicycle wheels. In paragraphs 7 and 8 of the affidavit he gives sale figures of imported tyres and tubes from the years 1954 to 1961. The said sale figures do not separately indicate the value of the bicycle tyres and tubes imported during the said years. In paragraph 9 he says that during the years 1956 to 1958 the value of tyres and tubes for bicycles was about Rs. 10,00,000 imported partly against the licences of his firm and partly against the licences of other importers, but there were not such imports after 1958 because of a ban on such imports. He does not say how much was imported on the licences issued to his firm. May be, that figure was very small. So far as imports against the licences of others are concerned, it is difficult to place any reliance on the affidavit, unsupported as it is by any documentary evidence. A bare statement doesnot inspire much confidence. It is said that the Assistant Registrar has correctly found that incomplete documentary evidence was attributable to the destruction of the respondent company s record during World War if That may be so, but with respect to the sales in India, of the imported goods, it was possible for the respondent company to either file affdavits or accounts of the importers or of the sellers showing the sale of imported bicycle tyres and tubes. That has not been done. The Assistant Registrar has placed reliance on three sets of documents produced by Mr. Katrak, namely, (1) examples of trade enquiries received during the years 1960-61, exhibits al to a22", (2) bills for the years 1959-1961, exhibits b1 to b30 , and (3) shipping bills for the years 1958 to 1960, exhibits cl to c10 . The Assistant Registrar has placed reliance on three sets of documents produced by Mr. Katrak, namely, (1) examples of trade enquiries received during the years 1960-61, exhibits al to a22", (2) bills for the years 1959-1961, exhibits b1 to b30 , and (3) shipping bills for the years 1958 to 1960, exhibits cl to c10 . While relying on these documents, the Assistant Registrar appears to have lost sight of the fact that they all relate to the years after 1958, when admittedly the impart of bicycle tyres and tubes had been banned. Even the documents themselves establish a trade and reputation only with respect to heavy vehicle tyres and tabes. In this view, I must hold that the respondent company has failed to establish its reputation with respect to bicycle tyres and tubes. In Jellinek s case, REFERRED TO already the application was for registration of mark panda for shoe polish and the opposition was by proprietors of panda mark for shoes. Romer J. said- "the conclusion at which I have arrived on the evidence is that a substantial number of people do know that certain brands of boot and shoe polish are associated with manufacturers whose footwear is sold under the same mark as that applied to the polish, and that the apprehension which Mr. Bostock expressed on this question in relation to the lotus mark and the precautions which his company took in consequence are not without foundation. If, therefore, any sub- stantial section of the public in this country had, by the 6th May, 1941, become acquainted with the opponents panda footwear, I think that there is a reasonable possibility that the introduction into the retail boot and shoe shops, and even indeed into shops that commonly sell polishes but do not sell footwear, of shoe polish under the applicant s mark might create some uncertainty and confusion. In my judgment, however, there is no real evidence, that any members of the public had, by the 6th May, 1941, become acquainted with panda footwear at all. The only sales of this footwear before this date which I can regard as proved were the two comparatively small sales of 216 pairs of shoes to Messrs A. W. G amage and of 432 pairs to Anglo-American Shoe Stores Limited. . . . . . The only sales of this footwear before this date which I can regard as proved were the two comparatively small sales of 216 pairs of shoes to Messrs A. W. G amage and of 432 pairs to Anglo-American Shoe Stores Limited. . . . . . " ( 6 ) IT was argued on behalf of the respondent company that the appellant company having copied the mark of the respondent company was not the proprietor thereof and I should decline to exercise my discretion for registration. Reliance was placed on re: Application by Brown Shoe Company . In that case, the contention of the registered owner of the trade mark that the applicant had copied the owner s mark and, therefore, could not be regarded as the true proprietors of the mark was upheld and the Court in the exercise of its discretion declined to permit registration. This question not having been raised before the Assistant Registrar cannot be permitted to be agitated for the first time before me. ( 7 ) IN the result the appeal succeeds and the order of the Assistant Registrar set aside. The appellant company is, therefore, held entitled to the registration of its trade mark. Having regard to the circumstances of the case, the parties will bear their own costs.