JUDGMENT.- This is an appeal against the order of the Assistant Registrar of Trade Marks, Madras, dismissing the appellant’s application under section 56 of the Trade and Merchandise Marks Act, 1958, for rectification of the registered trade mark No. 215062 of which the first respondent is the proprietor. 2. The main objections of the appellant were: (1) the impugned trade mark of the first respondent so nearly resembled the previously registered trade mark of the appellant, that its use was likely to deceive or cause confusion in the public mind, and consequently the registration of the first respondent’s trade mark was a violation of section 11 (a) of the Trade and Merchandise Marks Act,1958, and (2) the appellant having already registered his trade mark in respect of safety matches, the first respondent’s trade mark, which is identical with or deceptively similar to the appellant’s trade mark, should not have been registered in respect of the same goods or description of goods in violation of section 12 (1) of the Act. 3. In order to understand the soundness of these objections, it is necessary to refer to the antecedents of the appellant and the first respondent. Iyya Nadar, the appellant, is a resident of Sivakasi in Ramanathapuram District. He his been manufacturing safety matches since 1945 and selling the same under trade mark of “ Camel Brand” . His trade mark had been registered on 4th April, 1945. His “Camel Brand” safety matches have been in great demand throughout India, and the statement of his annual sales turnover for the period from 21st February, 1945 to 31st March, 1967, reflects the great popularity that the “Camel Brand” safety matches have been enjoying in the market. His annual sales turnover for 1946-47 was Rs.5,77,184-31 whereas the corresponding figure for 1966-67 is Rs 29,69,102-51. His claim is that he had widely advertised his “Camel Brand” safety matches through various media such as newspapers cinema slides, sign boards, posters and calendars, and his expenses in that behalf have in certain years ran into several thousands of rupees-vide Exhibit D-1. The first respondent, Rajadorai Nadar belongs to the same community as the appellant and is a resident of Sattur, which is about 18 miles away from Sivakasi, the appellant’s place. According to the first respondent, he started manufacturing and selling safety matches under the “Ram” trade mark from 23rd May, 1959. The first respondent, Rajadorai Nadar belongs to the same community as the appellant and is a resident of Sattur, which is about 18 miles away from Sivakasi, the appellant’s place. According to the first respondent, he started manufacturing and selling safety matches under the “Ram” trade mark from 23rd May, 1959. He filed his application for registration of his trade mark on 22nd April, 1963, that is to say, nearly 18 years after the appellant’s trade mark had been registered. The first respondent no doubt claimed user of this trade mark since May, 1959. In the year that the first respondent claims to have started manufacturing the safety matches, the appellant’s annual sales turnover of “Camel Brand” safety maches was Rs.24,42,570-02. In other words, at the time the first respondent started manufacture of match boxes, the appellant had already established a great reputation in the market for his trade mark, having been in the field for over 14 years before the first respondent started manufacturing safety matches and for over 18 years before the first respondent applied for registration of his trade mark. As both the parties belong to the same district and the same community and have been carrying on business within a short distance of “each other, there can be little doubt that when the first respondent designed his ”Ram “ trade mark, he was well-acquainted with the trade mark of the flourishing appellant, had occasion to study its dominant features, and note how lucky and successful it had been in the market. In his anxiety to push the sales of the safety matches in the market, he permitted himself to design a trade mark, which borrowed from the appellant’s trade mark its predominant features, without at the same time exposing himself to a charge of slavish imitation. Both the trade labels have the same dimensions,–4½ cms. long and 3 cms. broad, This is an innocuous feature because matches are usually sold in small boxes, the dimensions of which are practically identical. The top borders of both the labels are in red, and the bottom borders are printed in black. In the top border, the appellant has printed the words ”Camel Brand “ in white, where as the first respondent has printed the word ”Ram“ in white. These two names do illustrate dissimilarity of feature. The top borders of both the labels are in red, and the bottom borders are printed in black. In the top border, the appellant has printed the words ”Camel Brand “ in white, where as the first respondent has printed the word ”Ram“ in white. These two names do illustrate dissimilarity of feature. The bottom border in both the labels contains the words ”Safety Matches “ printed in white. This similarity in feature can be explained away as a feature common to the trade. Above the bottom black border, there is an yellow band in the appellant’s trade label on which is printed in black the words ”South Indian Lucifer Match Works, Sivakasi “ , whereas in the corresponding yellow band in the first respondent’s label, the following words are printed ”Sokkar Match Works, Sattur. This again is a dissimilarity, which cannot be helped. It is when we come to the central portion of the labels the striking similarities leap to the eye. The central panel of both the labels is 4½ cms. long and 2 cms. broad. In other words the central portion of the label is the most predominant part of the label, not only because of the predominant space it occupies, but also because unlike the top and bottom portions, which carry merely printed words, the central portion would strike the normal eye, because it contains, picturesque nonverbal representations. The vast majority of purchasers of safety matches in India have no knowledge of the English words which are printed in the trade labels, and would, therefore, identify the labels mostly with reference to the pictorial part of it. Now, what is it that we find in the pictorial parts of these two labels? In the appellant’s trade label, stands a camel, the outlines of which are drawn in black with a few dashes of rose on the body. It stands on sand dunes, which are partly yellow and partly red. 4. Evidently, the artist, who prepared the appellant’s label, wanted to show the camel in its natural habitat of a desert. In the background, we see a yellow sky with some dark green coconut trees and other trees in the distance. When we turn to the first respondent’s label, we find the figure of a ram — rather the apology for a ram. The face of the animal is less like a ram, than a camel. In the background, we see a yellow sky with some dark green coconut trees and other trees in the distance. When we turn to the first respondent’s label, we find the figure of a ram — rather the apology for a ram. The face of the animal is less like a ram, than a camel. The outline of this figure is in black and the dash of rose along the outline would indicate that the ram would very much like to pass off for a camel. At any rate,, the colour scheme employed for drawing the ram is identical with that employed -for drawing the camel. What is worse, the ram which is no denizen of the desert is also standing on sand dunes, like the appellant’s camel. Desert Sand dunes and rams go ill together and this incongruous feature suggests an intention to imitate the appellant’s trade label. The sand dunes in the first respondent’s label are, like those in the appellant’s painted alternately in yellow and red, The background to the ram is a sky which is as artificially yellow as the sky in the appellant’s label. As for the trees and bushes in the background, they are also dark green, one or two of them looking like coconut trees. The tree to the left of the ram has a family resemblance to the tree to the right of the camel. The colour pattern of both the labels and the very order in which one colour follows another are strikingly similar; first, the top border in red, second, the central pictorial representation with a yellow background and a red-and-yellow foreground, the third, a yellow bank and the fourth the bottom black border. The unwary purchaser will not be keeping these two labels side by side and making a microscopic examination thereof. The average buyer, who has been acquainted with the “Camel Brand” trade mark for a number of years, would retain in his mind a vague blurred impression of the colour scheme of the label and the trees, bushes and the animal pictorially represented therein. When he looks casually at the “Ram” trade label which has the same colour scheme and background and foreground, he is most likely, in my view, to mistake it for the “Camel Brand” safety matches. When he looks casually at the “Ram” trade label which has the same colour scheme and background and foreground, he is most likely, in my view, to mistake it for the “Camel Brand” safety matches. It is important to remember that the trade mark of the first respondent is to be used in respect of the same goods as those in respect of which the appellant’s trade mark has been registered over 18 years previously, and the likelihood of deception and confusion is, therefore, all the greater. The probabilities are that the first respondent, who is a late comer in the field and who must have known the great reputation enjoyed by the appellant’s trade mark in the market, intentionally designed his trade mark in such a way that it might cause confusion in the mind of the unwary purchaser to the detriment of the appellant and to the profit of himself. Even assuming that the intention is not there, the effect is there. The expression “deceptively similar” has been defined in section 2 (d) of the Trade and Merchandise Marks Act, 1958 as follows: “A mark shall be deemed to be deceptively similar to another mark if it so nearly resembles that other mark as to be likely to deceive or cause confusion”. 5. In Parle Products (P.) Limited v. J.P. and Company, Mysore1, the Supreme Court had occasion to apply this definition to the facts of a case which are somewhat similar to the present. Their Lordships quoted with approval the following passage from “Kerly’s Laws of Trade Marks and Trade Names” (Ninth Edition) paragraph 838: “Two marks, when placed side by side, may exhibit many and various differences, yet the main idea left on the mind by both may be the same. A person acquainted with one mark, and not having the two side by side for comparison, might well be deceived if the goods were allowed to be impressed with the second mark, into a belief that he was dealing with goods which bore the same mark as that with which he was acquainted. Thus for example, a mark may represent a game of football; another mark may show players in a different dress, and in very different positions and yet the idea conveyed by each might be simply a game of football. Thus for example, a mark may represent a game of football; another mark may show players in a different dress, and in very different positions and yet the idea conveyed by each might be simply a game of football. It would be too much to expect that persons dealing with trade marked goods, and relying, as they frequently do, upon marks should be able to remember the exact details, of the marks upon the goods with which they are in the habit of dealing. Marks are remembered rather by general impressions or by some significant detail than by any photographic recollection of the whole. Moreover, variations in detail might well be supposed by customers to have been made by the owners of the trade mark they are already acquainted with for reasons of their own”. After quoting this passage, their Lordships observed as follows:- “It is therefore clear that in order to come to the conclusion whether one mark is deceptively similar the features of the two are to be considered. They should not be placed side by side to find out if there are any differences in the design, and if so, whether they are of such character as to prevent one design from being mistaken for the other. It would be enough if the mark bears such an over-all similarity to the registered mark as would be likely to mislead a person usually dealing with one to accept the other if offered to him. In this case, we find that the packets are practically of the same size, the colour scheme of the two wrappers is almost the same; the design on both though not identical bears such a close resemblance that one can easily be mistaken for the other. The essential features of both are that there is a girl with one arm raised and carrying something in the other with a cow or cows near her and hens or chickens in the foreground. In the background there is a farm house with a fence. The word” Gluco Biscuits “ in one and” Glucose Biscuits “ on the other occupy a prominent place at the top with a good deal of similarity between the two writings. In the background there is a farm house with a fence. The word” Gluco Biscuits “ in one and” Glucose Biscuits “ on the other occupy a prominent place at the top with a good deal of similarity between the two writings. Any one in our opinion, who has a look at one of the packets today may easily mistake the other, if shown on another day as being the same article which he had seen before. If one was not careful enough to note the peculiar features of the wrapper on the plaintiff’s goods, he might easily mistake the defendant’s wrapper for the plaintiff’s if shown to him sometime after he had seen the plaintiffs’. After all, an ordinary purchaser is not gifted with the powers of observation of a Sherlock Holmes. We have, therefore, no doubt that the defendant’s wrapper is deceptively similar to the plaintiff’s; which was registered”. In that case, it may be observed the infringing wrapper contained the picture of a girl supporting with one hand a bundle of hay on her head and carrying a sickle and a bundle of food in the other, the cows and hens being unlike those of the plaintiff’s wrappers. On the other hand, the wrapper of the registered proprietor depicted a farm yard with a girl in the centre carrying a pail of water with cows and hens around her in the background of a farm yard house and trees. There was also difference in the design of the buildings in the two wrappers and the words printed on the wrappers were distinct and separate. These were all pleaded as dissimilarities, and yet the Supreme Court held that the impugned mark bore such an overall similarity to the registered mark as was likely to mislead a person to accept the one for the other. In this case also, I find from the collocation of words, the general colour design and the background and the foreground in the central panel of the trade labels, there is in overall similarity between the appellant’s trade label and that of the first respondent, such as to lead to confusion of the one for the other. In this case also, I find from the collocation of words, the general colour design and the background and the foreground in the central panel of the trade labels, there is in overall similarity between the appellant’s trade label and that of the first respondent, such as to lead to confusion of the one for the other. Section 11 of the Act directs that a mark, the use of which is likely to deceive or cause confusion, shall not be registered as a trade mark; whereas section 12 directs that save as provided in sub-section (3) no trade mark shall be registered in respect of any goods or description of goods, which is identical with or deceptively similar to a trade mark which is already legistered in the name of a different proprietor in respect of the same goods or description of goods. The Assistant Registrar, therefore, erred in registering the first respondent’s trade mark and in refusing, on the application of the appellant for rectification, to expunge the first respondent’s trade mark No. 215062 from the Register. It is however, represented on behalf of the appellant that he would have no objection to the trade mark of the first respondent being registered if the first respondent varies the colour scheme in his trade label and removes the background and the foreground to the ram in that label. 6. Before parting with this case, I may refer to two contentions, one raised by the appellant and the other by the first respondent. It is said that the first respondent gave the Registrar certain figures of his sales, which were at variance with the figures of the first respondent’s sales as given by certain independent persons. The figures given by the independent persons in their affidavits in support of the first respondent’s application for registration exceeded by a large margin the figures given as annual turnover by the first respondent. It is consequently contended on behalf of the appellant that the first respondent has secured registration by practising deception on the Registrar. I find no substance in this contention. The first respondent himself did not give any exaggerated figures in his affidavit. The circumstance that the figures given by others did not tally with the first respondent’s figures would not be a proper ground for refusing registration. 7. I find no substance in this contention. The first respondent himself did not give any exaggerated figures in his affidavit. The circumstance that the figures given by others did not tally with the first respondent’s figures would not be a proper ground for refusing registration. 7. The contention raised by the first respondent is that the appellant was debarrrd from filing the application for rectification, because though he filed an opposition to the registration of the first respondent’s trade mark, he failed to file evidence at that stage and an order was passed closing the matter and directing registration of the first respondent’s trade mark. It may be recalled that the first respondent’s application for registration of his trade mark was filed on 22nd April, 1963. On 16th March, 1964, his application was advertised. On 8th February, 1965, the appellant filed his opposition to the registration. But since he did not file evidence in time, his opposition was closed and the first respondent’s trade mark was registered. Subsequently, on 8th July, 1967, the appellant filed the rectification application, the dismissal of which has necessitated this appeal. The question arises whether in these circumstances, the application for rectification is barred. Rule 51 of the Trade and Merchandise Marks Rules, 1959 provides that a notice of opposition to the registration of a trade mark under sub-section (1) of section 21 of the Act shall be given within three months from the date of the advertisement or readvertisement, as the case may be, of the application for registration in the journal. Rule 52 provides that the counter-statement required by sub-section (2) of section 21 shall be sent within two months from the receipt by the applicant of the copy of the notice of opposition. Rule 53 prescribes that within two months from the service on him of a copy of the counter — a statement by the Registrar, the opponent shall either leave with the Registrar such evidence by way of affidavit as he may desire to adduce in support of his opposition or shall intimate to the Registrar and to the applicant in writing that he does not desire to adduce evidence in support of his opposition, but intends to rely on the facts stated in the notice of opposition. Sub-rule (2) of Rule 53 says that if an opponent takes no action under sub-rule (1) within the time there in prescribed, he shall, unless the Registrar otherwise directs, be deemed to have abandoned his opposition. In this case the appellant failed to file evidence within the time prescribed. What is the legal effect of that failure? There is nothing in the Trade and Merchandise Marks Act, 1958, which penalises the opponent for falling to file any evidence. Reference may be made in this connection to clause (6) of section 21 of the Act, which runs as follows: “Where a person giving notice of opposition or an applicant sending a counter-statement after receipt of a copy of such notice neither resides nor carries on business in India, the Registrar may require him to give security for the costs of proceedings before him and on default of such security being duly given, may treat the opposition or application, as the case may be, as abandoned”. Though a penalty has been prescribed for failure to furnish security, there is no provision in the Act which prescribes such a penalty for failure to file evidence. However, the rule making authority has under sub-rule (2) of Rule 53 prescribed that the opponent must be deemed to have abandoned his opposition if he takes no action under sub-rule (1) within the time prescribed. It is unnecessary for me to consider whether sub-rule (2) of Rule 53 is ultra vires of the rule-making authority. Assuming it is intra vires the effect of the sub-rule is that the opponent must be deemed to have abandoned his opposition to the registration. But there is nothing in the Sub-rule, which prevents the opponent from filing an application for revocation at a subsequent stage. Section 56 of the Act provides that on an application made in the prescribed manner to a High Court or to the Registrar by any person aggrieved, the Tribunal may make such order as it may think fit for cancelling or varying the registration of a trade mark on the ground of any contravention of or failure to observe a condition entered on the register in relation thereto. The appellant is certainly a person aggrieved within the meaning of section 56 and he is entitled to file an application for rectification notwithstanding the fact that the he had abandoned his opposition at an earlier stage to the registration of the first respondent’s trade mark. The opposition of the appellant was not considered on the merits at the earlier stage, and I fail to see how by any principle analogous to res judicata. the appellant’s application for rectification can be held barred especially when there is nothing in the Trade and Merchandise Marks Act, 1958, or in the rules framed thereunder imposing such an embargo. 8. At page 186 of Kerly on Trade Marks (Eighth Edition), the learned author says: “If the applicant for rectification is a person who has opposed the registration of the trade mark, and the grounds on which he is claiming rectification are such as were taken in the opposition, and the opposition was disallowed by the Court, the matter might be held to be res judicata between the parties and the application for rectification refused.” But in this case, the opposition of the appellant was not disallowed by the Registrar on the merits. It was merely closed on foot of the fiction that because he did not file evidence within the prescribed time, he had abandoned his opposition. 9. In Kenrick and Jefferson’s T.Ms.1, it was held that where the Court had in an appeal in an opposition on special grounds refused leave to the opponent to take certain objections to the registration because they were not raised in the notice of opposition, it was open to him in the rectification proceedings to raise those objections, and the opponents were not barred by res judicata. I, therefore, hold that under section 56, the appellant’s application for rectification is not barred. 10. In the result, I reverse the order of the Assistant Registrar, and allow the appeal with costs throughout. The first respondent’s “Ram” trade label will stand rectified as follows: 1. The background and foreground in the central panel of the trade label in which the “Ram” is portrayed, shall be removed; 2. The general colour pattern of the label be changed, so that it may be different from that of the appellant’s Camel brand trade label; 3. The first respondent will be at liberty. The background and foreground in the central panel of the trade label in which the “Ram” is portrayed, shall be removed; 2. The general colour pattern of the label be changed, so that it may be different from that of the appellant’s Camel brand trade label; 3. The first respondent will be at liberty. to retain all the words in his trade label as well as the figure of the “Ram”. S.J. ------------ Appeal allowed.