JUDGMENT The appellant is a Limited Company incorporated under the Indian Companies Act, having its Registered Office at Ludhiana in the State of Punjab. The case of the appellant is that it is a very popular and well known manufacturer of cycles and cycle-parts and the sales of the said Company exceed a crore of rupees per annum. At present the petitioners are the Registered Proprietors of the Trade Mark bearing Registration no. 190649 and the appellant, has been using the Trade Mark "Avon" on cycles and cycle parts since 1962. According to the appellant, the said Trade Mark had become very famous all over India. The Respondent no. 3 J.S. Aurora carrying on business under the name and style of "Overseas Cycle Company" at no. 3, Bentinck Street, Calcutta at first applied for registration of a Trade Mark "A-von" under application no. 187072 for cycle-parts only. But as the Registrar refused to register the said Trade Mark the said application was withdrawn by the Respondent no. 3. Thereafter in June, 1961, the Respondent no. 3 applied for the registration as a Trade Mark in respect of cycles and cycle-parts included in Class 12 but not including tyres of the word "A-win". On some objection being raised for registration, the Respondent changed it to "A-win". The Deputy Registrar, Respondent no. 1 ordered the Mark to be advertised. Accordingly it was advertised on the Trade Marks Journal no. 318 dated 1st of September, 1962 at page 837. The said advertisement stated that the "mark" was proposed to be used. The appellant filed an opposition to the above application bearing no. 202874 on 30th of November, 1962. In the said opposition the appellant took the points that the said Mark was not registrable under Section 11 (a), 11 (e) and 12(1) of the Act. The appellant in their opposition mainly took the point that they have been using their marks for the last 10 years and Mark "Avon" was a part of their name and trade style and that Mark was registered. There was only a difference of a vowel in respect of the appellant's registered Trade Mark "Avon" and the Respondent no. 3 are going to use the said Mark "Awin" on the same type of goods except tyres. There was only a difference of a vowel in respect of the appellant's registered Trade Mark "Avon" and the Respondent no. 3 are going to use the said Mark "Awin" on the same type of goods except tyres. In support of the appellant's opposition various numbers of Affidavits were filed and those Affidavits show not only the long use of the 'Avon' cycles in the market but also enormous sales achieved by the petitioners through various dealers and agencies. Those Affidavits showed not only the volume of sales but also the evidence of user of the word "Avon" as a Trade Mark. The main contention of the Respondent no. 3 was that he had been marketing his product under several Trade Marks and the word "Avon" does not resemble phonetically or visually the Mark "Awin". The Respondent no. 3 also relied on various affidavits in support of his contention. On 2nd of April, 1966 the said application was heard and an order was passed by the Deputy Registrar of Trade Mark on the 18th of April, 1968 which was received by the appellant on 20th of April, 1968. In the said order the Deputy Registrar of Trade Mark although accepted that the fact that long user of the Mark has been established by the appellant but did not accept the various sales figures given by the appellant as the appellant could not produce their Account Book or any certificate by a Chartered Accountant. The Deputy Registrar came to conclusion that both the Marks "Avon" and "Awin" were totally different. According to him the word "Avon" is not the distinguishing feature of the registered Trade Mark no. 190649 or that there is any deceptive similarity between the word "Avon" and "Awin". According to him the tendency to slur the letter "A" is common and so "von" and "win" are not deceptively similar and he came to the conclusion that the objections under 11(a), 11(e) and 12(1) could not be invoked and the opposition filed by the appellants failed on every count. Being aggrieved by the said orders, the appellants appealed from the said orders mainly on the grounds, that as the Respondent no. Being aggrieved by the said orders, the appellants appealed from the said orders mainly on the grounds, that as the Respondent no. 3 are not the manufacturers as such they could easily use any other label for their goods whereas the petitioners are manufacturers and the Trade Mark is put on the goods by a mechanical process which is embossed with the dies. In fact at one stage the Respondent no. 3 was willing to change their work Mark "Awin" to the word "Awine". According to the Appellant, the cycle is a very common means of transport mostly for the poor people who are not generally literate in English. So when the words "Avon" and "Awin" are written in vernacular languages they would look and sound similar and if they are written in Urdu they will be written identically. Mr. Debi De, Barrister-at-law appearing with D.P. Mukherjee submitted before me that the Deputy Registrar of Trade Marks should have held that the words "Avon" and "Awin" are similar not only visually but also phonetically. It is the definite case of Mr. De, that the Respondent no. 3 has been frantically trying to copy the mark of the petitioners with a dishonest motive taking advantage of the goodwill and reputation of the petitioners and its sale performance, the Respondent no. 3 is going to use the Mark by passing off his goods as that of the petitioners. According to Mr. De, the intention of the Respondent no. 3 has been continuously malafide and the adoption of the mark "Awin" has been deliberately and dishonestly done. Moreover, Mr. De, submitted that the Deputy Registrar was wrong by depending on English decisions and depending on the English way of pronunciations. On the contrary he should have taken the Indian conditions into consideration more so because the petitioners sales of cycles and cycle-parts are maximum in the State of Punjab where the people of Punjab in the vernacular language would pronounce the word "Avon" and "Awin" in exactly similar manner. According to him the Respondent No. 3's mark is not in use but is only proposed to be used so what prevented them to adopt any other mark which is dis-similar to the mark of the petitioners. According to him the Respondent No. 3's mark is not in use but is only proposed to be used so what prevented them to adopt any other mark which is dis-similar to the mark of the petitioners. As they are not manufacturing but only as merchants would be putting their lable on the goods produced by others, as such adopting a new lable would not have hit the appellant or any body else. Mr. De's definite case is that the use of word in vernacular languages in India would give the same effect phonetically and visually. According to the appellants the Deputy Registrar should have held that Section 11(a) of the Trade and Merchandise Marks Act is a complete bar to the registration of the Trade Mark "Awin" and also should have refused the registration of the Trade Mark under Section 12(1) on account of deceptive similarity of the mark. 2. Mr. De, has submitted that the only test to be applied in this case is whether it would cause any deception or confusion or not. According to him, the onus is on the Respondent to show affirmatively that the mark is not materially going to cause the confusion or deception and to discharge that onus the Respondent must prove that there is no probability of deception or confusion. Mr. De has submitted that the Assistant Registrar's decision is guilty of serious infirmities as he has overlooked to take into notice that the onus lay on the Respondent to prove that there is no probability and chance of deception. From his finding it would appear that he has come to the finding that the proposed registration would not cause any deception. When all affidavits showed that there might be a confusion of the word of the mark "Awin" with "Avon", the Assistant Deputy Registrar should have taken into consideration the Affidavit evidence on that fact. Visually the first letter of both the marks "A" do not look very different, phonetically, according to Mr. De they are similar as the word "Avon", may be confused with the word "Awin". Mr. De referred to various cases and submitted that this appeal should be allowed by setting aside the order of the Deputy Registrar of Trade Mark. 3. Mr. B.C. Dutta, advocate, appearing on behalf of the Respondent no. De they are similar as the word "Avon", may be confused with the word "Awin". Mr. De referred to various cases and submitted that this appeal should be allowed by setting aside the order of the Deputy Registrar of Trade Mark. 3. Mr. B.C. Dutta, advocate, appearing on behalf of the Respondent no. 3 has submitted that the entire Trade Mark should be looked into as a whole. The petitioners’ registered Trade Mark is "Avon Cycle Private Ltd." The entire picture of the said Trade Mark should be taken into account which would appear from page 25 of the paper book. There is a big capital letter 'A' on the top of which it is written "Avon" and on the bottom of the letter capital 'A' it is written "Cycles Private Ltd". There is a pictorial design which resembles two wings. The word "Avon" has also been peculiarly written with a capital "A" with a mark of two wings on the top of it and the part of the letter "A" covers the whole of the word "Avon" whereas in his client's mark "Awin", there is no picture accompanied with it, no name of Company has been mentioned no wings and no other parafarnalia, as such ignorant or uneducated people in India would be able to distinguish "Avon" from "Awin" by simply looking at the picture and the word alone. Phonetically, also both the words are different and do not sound or pronounced absolutely on clinchingly. The case of the Respondent no. 3 is that his is a Trade Mark of words only whereas the appellant's mark is a picture mark with the words and not simple words alone. Moreover, from the registration of the Trade Mark, it would appear that the petitioners nos. is 190649 whereas the Respondent no. 3's Registration No. is 202874. As such there is hardly any difference between the application of the two regarding the registration of their Trade Marks. One cannot take a part of the Trade Mark and say that others are trying to copy it while taking into consideration, the entire registered Trade Mark must be taken into consideration. The Trade Mark "Avon" is a composite mark with not only the letters but with designs and picture whereas the mark "Awin" is only a combination of letters. One cannot take a part of the Trade Mark and say that others are trying to copy it while taking into consideration, the entire registered Trade Mark must be taken into consideration. The Trade Mark "Avon" is a composite mark with not only the letters but with designs and picture whereas the mark "Awin" is only a combination of letters. If the petitioners would have registered a part of their Trade Mark that is the word "Avon" alone then there could have been such a objection for registration of the word "Awin". Here in this case, there is hardly any possibility of confusion, the word "Avon" is not the distinguishing feature in the case of the registered Trade Mark of the appellants, but the design is also there. The Registrars of Trade Mark who are experienced persons dealing with such facts and matters day to day, as such their findings should not be disturbed by the Court or interfered with ordinarily unless the Court finds that there has been a gross error on the part of the Registrar in coming to the said conclusion. In this case the Respondent No. 3 has discharged his onus. So far as the Affidavits are concerned, they are only opinion evidence and it is entirely a matter for the Deputy Registrar to decide and it is not for the people who are the registered dealers find agents of the petitioners to say regarding the same. Only in cases where a report is manifestly wrong the Court should interfere. When there is no question of visual similarity much sting goes out of the dispute. In case of phonetic similarity it must he very strong to deceive or confuse a buyer. 4. The main point for decision in this appeal is whether the Registrar has gone manifestly wrong in his finding with utter disregard to the facts of the case and principles of laws. Second point for consideration is whether the mark of the respondent is likely to cause confusion and/or deception and in that respect the onus is entirely on the respondent to show affirmatively that his mark is not likely to cause any confusion or deception in the mind of the public. Second point for consideration is whether the mark of the respondent is likely to cause confusion and/or deception and in that respect the onus is entirely on the respondent to show affirmatively that his mark is not likely to cause any confusion or deception in the mind of the public. The decision whether the appellant's mark does or does not so nearly resemble the respondent's mark so as likely to cause confusion or deception is a decision which is a finding of fact. The task before the Registrar is to see whether the registration of the mark is or likely to embarrass other traders or to cause confusion amongst the public. Under Section 11 of Trade and Merchandise Mark Act, 1958, there is prohibition of registration of certain mark the use of which would be likely to deceive or cause confusion. There are many ways in which such confusion may arise and each case must depend upon its own facts. Even if the Registrar in the event of the court's finding, has given an erroneous decision where the court very well, may come to a different conclusion but where the Registrar has not misdirected himself with regard to the law und the facts the mere fact that the court may arrive at another or different conclusion, there is no reason for interfering with the Registrar's decision. In the case reported in (1) 1927, 40 R.P.C. page 27 Lord Duneden has stated "Unless the Registrar has gone clearly wrong his decision ought not to be interfered with. The reason for this it seems to me that to settle whether a trade mark is distinctive or not is a practical question and a question that can only be settled by considering the whole of the circumstances of the case. I look upon the word 'distinctive' in the Act as the indication of a practical standard to which the Registrar is bound to confirm." The Registrar of trade mark has an expert knowledge of such matters and his decision should not be lightly disturbed but the Court is not powerless in proper cases to upset the finding of the Registrar. The Registrar's decision definitely will be overruled if he has applied wrong principles of law and has not appreciated the provisions of the Act or evidence as laid before him. The Registrar's decision definitely will be overruled if he has applied wrong principles of law and has not appreciated the provisions of the Act or evidence as laid before him. The Registrar's decision will not be upheld if it is unreasonable as for instance where the circumstances of the case do not support the reasons given by him for exercising his discretion. 5. There are many ways in which confusion may arise and each case must depend upon its own facts. If a mark is identical with a registered mark there is no difficulty. The difficulty arises in cases in deciding whether the mark so nearly resembles a registered mark as likely to deceive or cause confusion. In considering this question one has not only to consider the resemblance between the marks visually for that purpose but also one will have to find out whether they are phonetically similar. Marks should be compared as a whole. The Act does not lay down any test in determining what is likely to deceive or cause confusion. Therefore, every case must depend upon its own particular facts and the value of the authorities lies not so much in the actual decision as in the test applied for determining what is likely to deceive or cause confusion. The important factor is to find out what is the distinguishing and essential feature of the trade mark already registered and what is the main feature or the main idea underlying trade mark and if it is found that the trade mark which is going to be registered contains the same distinguishing or essential feature or conveys the same idea then ordinarily the Registrar would not registrar such trade mark. It is the duty of the Registrar even when there is no opposition, to duly consider the provisions of the Act and apply the same tests to come to a finding. 6. In the case reported in (2) AIR 1960, Supreme Court, page 142 (Corn Products Refining Co. v. Sangrila Food Product Ltd.) It has been held that, "The question whether the marks are likely to give rise to confusion or not is a matter of first impression. It is for the court to decide that question. 6. In the case reported in (2) AIR 1960, Supreme Court, page 142 (Corn Products Refining Co. v. Sangrila Food Product Ltd.) It has been held that, "The question whether the marks are likely to give rise to confusion or not is a matter of first impression. It is for the court to decide that question. English cases proceeding in the English way of pronouncing of English words by Englishman which is not always the same may not be of much assistance in our country in deciding the question of phonetic similarity. Again in deciding the question of similarity between the two marks one will have to approach it from the point of view of a man of average intelligence and of imperfect recollection. To such a man the overall structural and phonetic similarity and the similarity of the idea in which two marks are reasonably likely to cause confusion between them are important. The absolute identity of the two competing marks or their close resemblance is only one of the tests for determining the question of likelihood of deception or confusion, trade connection between the different goods is another test". 7. "Mark" has been defined in Section 2(j) of the Trade and Merchandise Mark Act of 1958 and includes a device, brand, heading, label, ticket, name, signature, word, letter or numeral or any combination thereof. In a composite mark the distinctive words appearing on it play an important part. Words always talk more than device, because it is generally by the word, part of a composite mark that orders are given. In the present case, the appellant's mark is a composite one that is a combination of the word 'Avon' with some pictorial figure and the name of the company. According to the Registrar, in this case the word 'Avon' is not the distinguishing feature in the said trade mark. As such according to his finding people are not likely to confuse the word 'Avon' with the mark 'Awin'. It is true that there are certain letters which are common in both the marks. The test is whether an average buyer with imperfect recollection will confuse the products of the appellant with that of the products of respondents. It is to be decided on a comparison of the two competing marks as a whole and their distinctive and essential features. The test is whether an average buyer with imperfect recollection will confuse the products of the appellant with that of the products of respondents. It is to be decided on a comparison of the two competing marks as a whole and their distinctive and essential features. In the present case the dispute is not only over a simple comparison of word but the comparison of word with a composite mark. In a case reported in (3) AIR 1972, Supreme Court, page 1359, it has been observed by the Supreme Court of India "it is, therefore, clear that in order to come to the conclusion whether the mark is deceptively similar to another, the broad and essential 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 a character as to prevent one design from another being mistaken for the other. It would be enough if the impugned mark bears such an overall 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. After all an ordinary purchaser is not gifted with the power of observation of Shirlock Homes. Each will have to be judged on its own merits and it would be of no use to note on how many points there was similarity and on how many others there is dis-similarity of it. The question whether a particular mark is calculated to deceive or cause confusion is not the same as the question whether the use of the mark will lead to passing off. It is necessary that there should be an actual probability of deception leading to passing off or an infringement against it. It is sufficient if the result of the registration of the mark will be that a number of persons will be caused to wonder whether the two products are coming from the same source. It is enough if the ordinary person entertains a reasonable doubt. Definitely the onus to prove under section 11 is on the applicant to show that his mark is not likely to deceive or cause confusion and if such proof is incomplete the application should be refused. Although it is true as submitted by Mr. It is enough if the ordinary person entertains a reasonable doubt. Definitely the onus to prove under section 11 is on the applicant to show that his mark is not likely to deceive or cause confusion and if such proof is incomplete the application should be refused. Although it is true as submitted by Mr. De in a country like ours where most of the people are of humble means and are of little education there may be the likelihood, of confusion of the two trade marks but at the same time when the people of humble means go and buy expensive articles like by-cycles they would naturally be very careful in choosing the same because it is quite different from buying any other ordinary articles like snuff, cigarettes, clothes ect. It is only after proper inspection and scrutiny and satisfying oneself a farmer or a person of humble means with little education would take an expensive item like by-cycle. 8. From the perusal of the report and finding of the Registrar, I do not find any inherent infirmities which would require interference by this court. I find in coming to his conclusion and finding, he has applied the correct principles of law, has duly appreciated the facts and/or evidence as laid before him. Mr. De's submission that the Registrar has not come to a correct conclusion and has not applied the law properly to the case, is unacceptable by me. Mr. De's submission that the Registrar has cast the onus on the appellant of showing that the respondent's mark would not cause deception or confusion in the mind of the public is not correct. The only point where the Registrar has cast such onus on the appellant is on the point that it was the duty of the appellant to prove that his trade mark has acquired sufficient reputation on the date of the application and also it was the duty of the appellant to prove through his books of accounts and other independent documentary evidence for the purpose of showing the various sales figure in their business. I do not find from the report that the Registrar has anywhere cast the onus on the appellant to prove that the respondent's mark would not cause confusion or deception. In fact previously, the respondent applied to have the word "AWIN" registered which was very rightly refused by the Registrar. I do not find from the report that the Registrar has anywhere cast the onus on the appellant to prove that the respondent's mark would not cause confusion or deception. In fact previously, the respondent applied to have the word "AWIN" registered which was very rightly refused by the Registrar. From the affidavit filed on behalf of the appellant which was intended to be used in opposition to the respondent's application for registration, it would appear that the appellant has stated "it should be presumed that the mark applied for the respondent was intended to deceive and therefore, was not entitled to any protection in the court of justice". The Registrar has considered not only the points taken in the affidavit of the appellant but has also at length dealt with all the points raised by the appellant and he has given his reasons for coming to his considered opinion to the effect that both the words 'Avon' and 'Awin' are not similar either phonetically or visually. This court finds no reason to interfere with the finding of the Registrar as I do not find any infirmities or lack of application of the principles of law to the particular facts of this case by the Learned Registrar. From the evidence before the Registrar it would appear that the appellant's mark acquired a reputation among the trade people who were dealing with their goods. As such the trade people were not likely to be deceived or confused by looking at the two marks. According to the Learned Registrar there is no similarity either visually or phonetically and he has given detailed reasons for his coming to the said conclusion which is a correct finding. He has supported his decision not only by good reasons but also relied on notable cases. Simply because of the fact that he has not written in his finding in so many words that there is no possibility of deception and/or confusion as there is no visual or phonetical similarity would not make his report bad or would not entitle this court to interfere and/or set aside the said report, simply on that ground. Simply because of the fact that he has not written in his finding in so many words that there is no possibility of deception and/or confusion as there is no visual or phonetical similarity would not make his report bad or would not entitle this court to interfere and/or set aside the said report, simply on that ground. Because by reading the entire finding one would gather that the Registrar came to the conclusion that because of the dis-similarity of the two marks both phonetically and visually, there is no possibility or likelihood of any deception or confusion in the mind of the public. As such he allowed such registration. I find no reason or any ground whatsoever to interfere with the said finding of the Registrar and I dismiss this appeal with costs.