S. Ranganathan ( 1 ) THIS is a petition by M/s. Hindustan Pencils Pvt. Ltd. (hereinafter referred to as the petitioner ). The petition has been filed under section 107 read with Sections 46 and 56 of the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as the Act ). The petitioner prays that trade mark No. 324345 under which the respondent has got registered a trade mark in respect of mathematical instruments and water colour boxes (which are goods failing in Class 16) should be removed and/or expunged from the Register of Trade Marks and that in any case the following goods should be specifically expunged from the registration, namely, "compass, dividers, set square, dee, (protractor) and foot rule". ( 2 ) THE respondent had filed a suit (being Suit No. 883/82) in this court. In that suit, the respondent had prayed that, in view of the trade mark registered by him in respect of instrument boxes, the petitioner should be restrained from using the trade mark "natraj" and the device of Natraj (which were said to be covered by the trade mark) in respect of instruments contained in geometry boxes or instrument boxes used generally in schools and other educational institutions. In the above suit, the petitioner made an application under section 111 of the Act pleading invalidity of the registration of the trade mark in favour of the respondent and praying for a stay of the suit under that section. On 20-12-1982, D. R. Khanna, J. passed an order staying the suit and allowing the petitioner three months time to file a rectification petition in respect of trade mark No. 324345 registered in favour of the respondent. It is in these circumstances that the present petition has been filed on 10-1-1983. ( 3 ) THE petitioner s case is that it is a company which has been carrying on a business in the manufacture of pencils and other stationery articles since 1957. It has been using the trade mark "natraj" in respect of pencils and other stationery articles since 1961. It has the following trade mark registrations :in other word, the petitioners have been using the word "nataraj" along with the device of Nataraj in respect of various kinds of pens, pencils, sharpeners, erase s etc. It has been using the trade mark "natraj" in respect of pencils and other stationery articles since 1961. It has the following trade mark registrations :in other word, the petitioners have been using the word "nataraj" along with the device of Nataraj in respect of various kinds of pens, pencils, sharpeners, erase s etc. and all these trade marks were got registered a long time prior to the registration of No. 324345 by the respondent of which rectification is sought. But nons of the above registrations specifically covered mathematical instruments and water colour boxes which are the items of goods presently in dispute, ( 4 ) THE petitioner and also registered itself as the proprietor of the copyright in respect of the word "nataraj" and the device of Nataraj under the Copyrights Act. These registrations bear numbers : A 25427/79. A 25426/79, A 25490/79, A 25680/79, A 25681/79, A 28337/80, A 33176/81 and A 31998/81. ( 5 ) ACCORDING to the petitioner, its goods have achieved a unique and substantial reputation, goodwill and name under the above trade mark and that when the word "nataraj" or the device of Nataraj is used in relation to the above goods and/or cognate goods or goods of the same discription, the public are likely to believe that those goods are also goods manufactured by the petitioner company. ( 6 ) THE respondent, who is also a manufacture of pencils got a registered trade mark No. 324345 in Class 16 in respect of mathematical instruments and water colour boxes. An application for registration was made on 6-4-1977 claiming user as from 1-1-1974 and the certificate of registration was granted on 7-3-1981. The application of the respondents for registration of the above trade mark was opposed by the petitioner company through its agents. But, in circumstances which will be referred to later, the petitioner s opposition was treated as abandoned by an order dated 27-2-1981 by the Registrar of Trade Marks and a certificate of registration was granted to the respondents, as already mentioned, on 7-3-1981. ( 7 ) IT appears that the petitioner company has also been marketing boxes containing mathematical instruments in the tin containers bearing thereon the word "nataraj" and the device of Nataraj for some time. ( 7 ) IT appears that the petitioner company has also been marketing boxes containing mathematical instruments in the tin containers bearing thereon the word "nataraj" and the device of Nataraj for some time. The respondents, therefore, filed a suit against the petitioner, as already stated, seeking a perpetual injunction restraining it from using the trade mark and the device in respect of instrument boxes. In the suit, the respondent was able to obtain an interim injunction restraining the defendants (petitioner here) from marketing instrument boxes with the trade mark and the device and by an order dated 20-12-1982 Khanna, J. refused to vacate the interim injunction obtained by the respondent. The petitioner thereupon appealed to the Supreme Court. while confirming the order of this Court, directed the expeditious hearing of the rectification petition filed by the petitioner. It is in these circumstances that this petition comes up for final disposal. ( 8 ) LEARNED counsel for the petitioner for rectification listed the following as the grounds on which he sought the rectification: (1) The trade mark "natraj" was got registered by the petitioner as long ago as 14-12-1264, admittedly, in respect of pencils, staples etc. which are all stationery goods falling in class 16. This registration covers geometry or instrument boxes which also constitute the same class of goods; (2) The defendants are not the proprietors of the trade mark in question and they are not eligible for registration in respect thereof ; (3) The registration of the defendant s trade mark was invalid inasmuch as it was not distinctive qua their goods for the reason that is had not been used by them for a period of three years or more ; (4) The trade mark got registered by the defendant is deceptively and confusingly similar with the trade mark registered in the name of the petitioner and is thus not entitled to protection; (5) The respondent had no intention to use the trade mark got registered by them as applied for and has not used it as such for more than 5 years and 1 month; and (6) The respondent obtained registration of their trade mark by means of misrepresentation and fraud and is, therefore, liable to have the registration cancelled. ( 9 ) ON the other hand, counsel for the respondent while refusing the above contentions, also raises certain preliminary objections to the maintainability of the petition. These fall primarily under two heads. One is that when the respondent applied for registration of the impugned trade make, the petitioner had entered opposition to the registration of the trade make but had abandoned it in a tell-tale manner. It is, therefore, not now open to the petitioner to seek to have the registration cancelled on grounds which had been available to the petitioner at the time of registration but which had not been pursued. The second is that the cancellation of registration is a discretionary relief which is not necessarily granted in all cases as a matter of right and that the petitioner had disentitled itself to the grant of this relief because of its having concealed certain facts from the court, because of certain admissions made by it and because of certain other special facts. The contentions of the respective counsel will be now considered. In order to consider the first preliminary objection of the respondent, it will be useful to set out a chronological catalogue of what happened at the time of registration of the impugned trade mark No. 324345: 6-4-1977 Respondent applies for registration of trade mark "nataraj" in respect of mathematical instruments under class 16, claiming user as from 1-1-1974. 13-9-1977 Certain defects were pointed out in the application and these were asked to be rectified. One of the objections, (item 12) read: "consideration will also be given to your application if you can submit evidence of any appreciable use of the mark in respect of the goods specified in the application by way of an affidavit supported by documentary proof. " 24-9-1977 The attorneys of the respondent answer in regard to some of the defects. 30-9-1977 The attorneys write a letter stating that an affidavit of the applicant was being filed along with 12 exhibits as documentary evidence. 1-12-1977 The attorney, in answer to a reminder dated 1-12-1977, refers to his earlier letter of 30-9-1977, the affidavit and 121 exhibits enclosed thereto. 3-12-1977 Further correspondence in the matter, not very material here. 2-2-1978 8-8-1978 24-8-1978 There is on record an examination report which discloses hat on search, two conflicting marks were noted: (1) Natraj word, already registered, under 216758 in favour of Jai Dayal Distributing Co. 3-12-1977 Further correspondence in the matter, not very material here. 2-2-1978 8-8-1978 24-8-1978 There is on record an examination report which discloses hat on search, two conflicting marks were noted: (1) Natraj word, already registered, under 216758 in favour of Jai Dayal Distributing Co. , Lucknow in respect of exercise books and other stationery goods December 1961; and (2) Natraj and emblem: Application of November 1974 under 318493 from Alpna Cottage. Industries, Delhi for mathematical instruments pending consideration. 1-4-1979 The application is advertised before acceptance under the proviso to Section 20 (1) of the Act in the Trade Marks Journals also given the date of the claim of user as from 1-1-1974. 16-7-1979 The petitioner s attorneys at Bombay file notice of opposition to the registration of the respondent s trade mark in form TM-5. They also file petition in form No. 44 seeking one month s special extension of time (for the delay in riling this) on the ground that they were "collecting material from the old records with details to be incorporated in the notice of opposition". 20-9-1979 Notice of opposition forwarded to respondent s attorneys by Registry. 24-9-1979 Respondent files their counter-statement. 20-12-1979 Counter statement forwarded to petitioner s attorneys calling for evidence in support of opposition within two months. 22-2-1280 Petitioner s attorneys file extension application in form TM-56 seeking two months time for filing evidence on the ground that materials from old records and local and up country dealer was being collected. 1-3-1980 Registry extends time till 24-4-1980. 22-4-1980 Petitioner s attorneys file application seeking two more months time on the same ground. 27-5-1980 Registry extends time till 24-6-1980. 21-6-1980 Respondent s attorneys file letter praying that as evidence had not been filed by 18-4-1980 the opposition should be treated as abandoned. 5-7-1980 Petitioner s attorneys file application seeking two more months time on the same ground and stating that the material and exhibits were being sorted out. 16-7-1980 Time extended till 24-8-l980. 15-9-1980 Respondent s attorneys file a letter repeating their earlier request that the opposition should be treated as abandoned. They also deposit the registration fee along with a request in form TM-11. 29-9-1980 Petitioner s attorneys seek further extension by two months on the ground that their managing partner is out of India and he had to swear to the affidavit. 16-10-1980 Time extended till 24-10-1980. They also deposit the registration fee along with a request in form TM-11. 29-9-1980 Petitioner s attorneys seek further extension by two months on the ground that their managing partner is out of India and he had to swear to the affidavit. 16-10-1980 Time extended till 24-10-1980. 29-10-1980 Respondent s attorneys repeat their earlier request. 31-10-1980 Petitioner s attorneys file another "final extension of time" application seeking two more months time. 13-11-1980 Time extended till 24-12-1980. 8-12-1980 Petitioner s attorneys file application seeking further extension by two months on grounds of unavoidable circumstances and labour trouble. 30-12-1980 Time extended till 24-2-1981. 28-2-1981 Registry sends a letter to both parties enclosing an "order for costs" passed by the Deputy Registrar on 27-2-1981. It recites that by reason of operation of Rule 53 (2), the opposition is deemed to have been abandoned and orders the opponents pay Rs. 30. 00 as costs of the proceedings. 28-2-1981 A letter dated 26-2-1981 is received from the petitioner s attorneys seeking one more month within which to submit evidence. 7-3-1981 Petitioner s attorneys are informed that, in view of the order dated 27-2-1981, the application seeking extension of time till 24-3-1981 is treated as infructuous. 2-3-1981 Respondent s attorneys pray that a registration certificate may be issued as the opposition has been decided in their favour-enclosing a copy of the Deputy Registrar s order dated 27-2-1981. 7-3-1981 The respondent s trade mark is registered for "mathematical instruments and water colour boxes". ( 10 ) BOTH sides have attempted to build up some arguments on the basis of the above proceedings at the time of the original registration of the impugned trade mark and these arguments may now be noticed. ( 11 ) COUNSEL for the petitioner sought to contend that the registration of the trade mark bad been improperly procured by misrepresentation and fraud. The contention in this regard is four-fold. ( 11 ) COUNSEL for the petitioner sought to contend that the registration of the trade mark bad been improperly procured by misrepresentation and fraud. The contention in this regard is four-fold. It is said (i) that the petitioner had sought to obtain inspection of the affidavit and documents said to have been filed by the respondent in support of their application for registration but has been unable to do so as they are now said to be missing from the Registrar s files and are not available; (ii) that the copy of the affidavit-said to have been filed then as now put forward by the respondent is false and incorrect, (iii) that the averment of the respondent in the application for registration that the trade mark belonged to them was patently false and incorrect and (iv) that the registration had been granted in unconscionable haste and was clearly mala fide. These contentions may now be considered. ( 12 ) SO far as the first point is concerned, it does appear that the affidavit and documents said to have been filed at the time of registration are not now traceable. But I am unable to ascribe any blame to the respondent in regard to this. Actually, the respondent has been applying to the Trade Marks Registry for the return of the said documents but has received no reply. His request that he may be permitted to file his affidavit by way of evidence after the receipt of these documents was opposed by the petitioner and could not be allowed as the respondent was not being supplied the copies land the petitioner also stated that he had inspected the records and not found the documents on the relevant file. The concerned files of the Trade Marks Registry were summoned at the request of the parties and are here. A perusal of the cover page of the file as well as the proceedings and that correspondence therein contained shows that these exhibits had been filed a the time of the application for registration on 1-10-1977. They are seen to have been taken to a separate file and hence they are not available on the file sent to the court. Though the respondent has applied for the return of these documents, he has received no reply. They are seen to have been taken to a separate file and hence they are not available on the file sent to the court. Though the respondent has applied for the return of these documents, he has received no reply. It may be that the concerned documents are on some other file which is not readily traceable and which, perhaps may,be located after some effort but I do not think it is necessary to pursue this further as the allegation that the respondent bad not filed any documents at all is contrary to the contents of the files produced before me which clearly show that such documents had been filed. ( 13 ) ON behalf of the petitioner, reliance is placed on an inspection note which bears the date 6-6-1979. This note is said to have been prepared by a member of the petitioner s staff on an inspection of the file of the trade mark registry in order to enable the petitioner to put forward its opposition to the registration. Unfortunately, the note only contains some initials and there is no affidavit or other evidence to show who prepared it, when and for what purpose. No reliance cannot, therefore, be placed on this document which has not been properly proved. I may, however, point out that even if one takes this to be a note drawn up on an actual inspection of the relevant file of the trade mark registry on 6-6-1979, it goes to support the version of the respondent that an affidavit dated 30-9-1977 had been filed by the petitioner. Further, the file shows that this affidavit was filed on 1-10-1977 and was an enclosure to a letter dated 30-9-1977. This letter also mentions the 121 exhibits and these also have also been marked as enclosures to the letter. If they had not been there, the person who prepared the note would have made a special note of it and they would have sought to make a point in opposition on the ground of absence of proof that the trade mark was in user since 1-1-1974 as claimed. It, therefore, seems to me that the absence of any mention in the note regarding the exhibits and the fact that the petitioner did not file any opposition to the respondent s application for registration rather supports an inference that these documents were very much there. It, therefore, seems to me that the absence of any mention in the note regarding the exhibits and the fact that the petitioner did not file any opposition to the respondent s application for registration rather supports an inference that these documents were very much there. Secondly counsel for the petitioner points out that in the above note, an extract from the respondent s affidavit dated 30-9-1977 has been given. The note says that in this affidavit the following sales figures had been given:however, the copy of the affidavit in support of the application now filed on behalf of the respondent is dated 28-9-1977 and gives the following sales figures:and these figures are highly exaggerated and at total variance from the figures earlier set out. Bat this argument again leads one nowhere. In the absence of the original records, it cannot be said which of these affidavits had actually been filed before the Registrar. But only one of these must have been filed before the Registrar and not both, though there is nothing to show which of the two were before him. If it is taken to be the affidavit as extracted in the inspection note, there was nothing wrong with it. The inspection note supports the respondent s case that an affidavit was filed and that the respondent was claiming continuous sales, publicity and user of the trade mark since 1-1-1974. The sales figures shown in the affidavit of 30-91977 are on the conservative side (as compared to the other set of figures) and the petitioner s case that the respondent had procured registration by falsely putting exaggerated figures of sales (mentioned in the affidavit of 28-9-1977) losses force if I proceed on the basis that the affidavit dated 30-9-1977 contained in the inspection note was the one before the Registrar. But even if we take it that it was the affidavit of 28-9-1977 that had been filed and not the other one, I cannot see how it helps the petitioner. In that event, the figures contained in the note referred to by the petitioner cannot be taken into account and an inference drawn that the figures given by the respondent were false or exaggerated. What an applicant for registration bad to show is that his goods are beingsold to a substantial extent under the trade mark on which user is claimed to have commenced. What an applicant for registration bad to show is that his goods are beingsold to a substantial extent under the trade mark on which user is claimed to have commenced. It is not the actual figures of sales that is relevant, what is relevant is whether there had been substantial commercial use of the trade mark: vide- Amritdhara Pharmacy v. Satya Deo Gupta1 and London Rubber Co. Ltd. v. Durex Products Incorporated and another. 2 Incidentally, I may mention that the cash books and ledge for 1973-74 produced before me show that the respondent s sales the period per Rs. 2945. 25 as stated above. That apart, the figures of sales claimed will be scrutinised by the Registrar and checked up, if he considers it necessary. Or, if there is any opposition, the opponent may challenge them and put the applicant to strict proof of the claim. The mere fact that the sales figures claimed by the applicant were very high cannot vitiate the grant of registration unless there is material to show that the figures put forward were false figures and that registration had been obtained on the basis of a false affidavit. Since admittedly only one of the affidavits, and not both of them, was before the Registrar it will not be logical to compare the sales figures as set out in the two affidavits and draw an inference that some false statement had been made or fraud had been perpetrated in obtaining the original registration. ( 14 ) THE third circumstance relied upon by the counsel for the petitioner has also proved inconclusive. This contention is based upon the photostat copy of a document dated 4-1-1977 which purports to be a reply by the trade mark attorneys of the respondent to one Atul Trade Mark Co. in reply to the latter s notice dated 19-11-1976. In this, they have stated, inter alia: "4. Our said clients are marketing their products under a fanciful and distinctive trade mark NATRAJ which is exclusive property of M/s. Babu Lal and Sons, Delhi. 5. That our clients have nothing to do with your alleged trade mark "natraj". Unfortunately, here again, the petitioner has failed to prove the document properly by an affidavit on behalf of Atul Trade Mark Co. or the other concern to whom the reply is addressed. 5. That our clients have nothing to do with your alleged trade mark "natraj". Unfortunately, here again, the petitioner has failed to prove the document properly by an affidavit on behalf of Atul Trade Mark Co. or the other concern to whom the reply is addressed. However, the Setter being one signed by Sri K. L. Aggarwal who appears for the respondent here as their trade mark attorney, he has attempted to give an explanation. He has filed a letter dated 5-1-1977 purportedly from Babu Lal for Babu Lal and Sons containing a cryptic sentence: "i surrender my right in respect of artistic work entitled natraj in your favour". This letter was not filed in the Trade Marks Registry in support of the application for registration and its authenticity cannot be taken for granted. The respondent has also filed the photostat copy of an agreement dated 16-12-1983 purporting to have been entered into between Babu Lal and the respondent. This purports to say that Babu Lal bad been manufacturing tin containers for the mathematical instruments marketed by the respondent under the mark natraj and that the letter dated 5-1-1977 was taken from Babu Lal lest he should put forward a claim that the artistic work belonged to him and start manufacturing boxes with the said artistic work for other persons as well. . The agreement purports to regularise this and to make it clear that the trade mark belonged to the respondent and not Babu Lal. The contents of this agreement, with nothing to show who Babu Lal is, with no affidavit from him and no other evidence to support it, cannot be accepted straightaway at this stage without further investigation. ( 15 ) HOWEVER, I do not think that the reply dated 4-1-1977 clinches the case against the respondent. The exact details, or even nature, of the allegations contained in the notice to which the letter is a reply are not known. The letter itself asserts that the respondent has an established business, inter alia, of geometry boxes which they are marketing under the trade mark Natraj for which they have earned a reputation. The exact details, or even nature, of the allegations contained in the notice to which the letter is a reply are not known. The letter itself asserts that the respondent has an established business, inter alia, of geometry boxes which they are marketing under the trade mark Natraj for which they have earned a reputation. It may be that Babu Lal in truth is a fictitious person and that the respondent merely tried to stave off immediate action against him by putting forward Babu Lal as the owner of the trade mark and then sought to stabilise his position by applying for registration. Or it may be, as claimed now, that what he intended to say was that the artistic work for the trade mark was done by Babu Lal and that the respondent safeguarded his position subsequently by obtaining the letter dated 5-1. 1977 and the agreement of 16-10-1983. Whatever that may be, the respondent applied for registration on the footing that this was his trade mark and that he had been using it since 1974. Neither Babu Lal nor anybody else came forward then, or has come forward so far, with a claim that the trade mark belonged to them or infringed their trade mark rights. It is also significant that the person to whom the reply addressed did not also come forward to oppose the application. In these circumstances, I am unable to accept the petitioner s contention that the registration is liable to be cancelled by reason of the "admission" in the letter dated 4-1-1977. ( 16 ) SRI Anoop Singh submitted, relying upon Balaji Chettiar v. Hindustan Lever Ltd. 3 and Vitamins that only the person who first designed or used a trade mark or who has some proprietary right therein which, if questioned, can be substantiated that can be said to be its owner or proprietor and apply for its registration. He urged that, if on the respondent s own admission, the trade mark belonged to Babu Lal, the respondent could not seek to have it registered in its name. The answer to this contention is that under Section 18 it is open to any person "claiming" to be the proprietor of a trade mark used or proposed to be used by him to seek its registration. The answer to this contention is that under Section 18 it is open to any person "claiming" to be the proprietor of a trade mark used or proposed to be used by him to seek its registration. The trade connection, necessary for establishing a claim of proprietorship, may be that of a manufacturer, selector or vendor of goods. A person using a trade mark consistently and over a period of time can claim to be its proprietor and seek its registration. In this case, whatever the part played by Babu Lal may be, the claim of the respondent was that it was using the trade mark and marketing mathematical instrument boxes thereunder since 1974. There is no material whatever to show that Babu Lal was using this trade mark or marketing goods under the said trade mark. If the letter dated 5-1-1977 from Babu Lal is genuine, then the respondent became fully entitled to use the trade mark and its registration was in order. I see no substance in the petitioner s contention that the letter of 5-1-1977 did not validly assign the lights of Babu Lal to the respondent as there was no assignment of the goodwill also, as required by Section 38 of the Act, as it does not purport to be an assignment of any trade mark at all and as there is nothing to show that there was any goodwill attached to it. Even if the letter of 5-1-1977 had in fact been taken later and was not in existence on 6-4-1977, therespondent s claim to the user remained uncontroverted; the only person who could object to the respondent s claim to its proprietorship was Babu Lal. So long as there is no objection from Babu Lal, there is no ground on which the respondent s claim to its proprietorship could be negatived. In the context of the trade mark law, a person can become a proprietor of a trademark either by virtue of case or by registration. The respondent throughout-even in the reply dated 4-l-1977 has been asserting that their geometry boxes were being marketed under this trade mark and if on such claim and in the absence of anybody else claiming to its proprietorship the application is accepted, there is no legality or irregularity that will vitiate the certificate granted. The respondent throughout-even in the reply dated 4-l-1977 has been asserting that their geometry boxes were being marketed under this trade mark and if on such claim and in the absence of anybody else claiming to its proprietorship the application is accepted, there is no legality or irregularity that will vitiate the certificate granted. ( 17 ) NOW I turn to the objection that the registration should be cancelled as it was granted in undue haste. The point made is that the time granted to the petitioner expired only on 24-2-1981 and that it is extraordinary that the opposition should have been treated as abandoned on 27-2-1981 and the certificate of registration issued on 8-3-1981. I see no force in this contention. I have set out in detail the proceedings before the Registrar. the chronology of events will show that the petitioner went on seeking exclusion of time repeatedly for furnishing evidence in support of his opposition and this was granted several times despite the respondent s request that exclusion of time should be refused and the opposition treated as abandoned. Infact, in the anticipation that his request in this regard would be accepted, the respondent even deposited the registration fee as early as 15-9-1980. It is, therefore, not surprising that when at last the petitioner s request for extension was refused, the respondent moved immediately for issue of the registration certificate. The opposition having petered out, there was no obstacle in the way of the certificate being issued and this was done expenditiously. The application for registration had been made in 1977 and it had been advertised in 1979 and I am indeed surprised to hear it argued by the petitioner, after having dragged on the proceedings to no purpose for almost two years, that the registration certificate had been issued in haste and should be revoked on that ground. ( 18 ) THE argument put forward on behalf of the respondent on the basis of the above proceedings for the registration of the trade mark is two-fold. ( 18 ) THE argument put forward on behalf of the respondent on the basis of the above proceedings for the registration of the trade mark is two-fold. The first is that the petitioner having opposed the application for registration and failed, he is precluded, on grounds analogous to the principles of estoppel and res judicata to seek a cancellation of the registration on grounds which he could and did urge at that time but which he failed to substantiate or even on other grounds, The other is that the petitioner cannot be said to be a person aggrieved within the meaning of Sections 46 and 56 of the Act. It is also said that the remedy of the petitioner was to have sought a review of the order of Registrar under Rule 115 or preferred an appeal to the High Court under Section 109 (2 ). ( 19 ) IT is not possible to accept these contentions. The respondent is not quite right in saying that the petitioner could have agitated the matter effectively by way of review or appeal even at the stage of registration. There is no doubt a provision for review and appeal from an order or decision of the Registrar. But, in a case of the present type, the grant of registration to the respondent could not have been challenged by the petitioner effectively unless the deemed abandonment of the opposition could have been got set aside. But the deemed abandonment was by virtue of the operation of Rule 53 (2) and not by reason of any order or decision of the Registrar. In from also, the order of the Registrar dated 27-2-1981 was only an order for costs to which the petitioner could not have really objected. There was, therefore, no effective remedy available to the petitioner against the grant of registration in such a situation. The only question is whether the failure of the petitioner to effectively prosecute his opposition at the earlier stage should preclude him from seeking the remedy of rectification at a later stage, particularly when the respondent seeks to challenge its rights to use the trade mark in question by was of a suit. The only question is whether the failure of the petitioner to effectively prosecute his opposition at the earlier stage should preclude him from seeking the remedy of rectification at a later stage, particularly when the respondent seeks to challenge its rights to use the trade mark in question by was of a suit. The petitioner s right to move for rectification stems from the language of Sections 46 and 56 and no restriction can be into these provisions so as to prevent a person from applying for rectification because he had a chance to oppose the application for registration and had availed of the same. A person, like the petitioner, who is a rival trader and is being sued by the respondent for infringement of their trade mark, is certainly a person aggrieved by us existence within the meaning of these sections. These words have a very wide meaning and should not be narrowly interpred. Reference may be made in this connection to Kerly on Patents (Eleventh Edition) pages 159-160 and 1107, Narayanan (Third Edition), paragraphs 860 and 861 and the observations in the Apllinaris (1891-8 RPC 137) and Powell s case (1893 10 RPC 195, C. A.), affirmed in (1894) 11 RPC 4 (HL ). Again Section 170 read with Section 111 specifically enables a person used for infringement of a trade mark to raise in defence a question as to the validity of the registration of the trade mark and move a petition for rectification before the High Court and it is not possible to hold that this right should be restricted only to cases where the defendant has not been a participant in the proceedings for registration. The principle of estoppel has no application in the circumstances of this case. So far as the principle of res judicata is concerned, there are difficulties in applying this doctrine in this field of law as the grounds on which issues have to be determined at one time may cease 10 operate at another time when the same matter comes up for determination. But I may assume (without deciding) that it is possible to import the doctrine within certain limits to proceedings under this Act so as to prevent repetitive applications of the same nature without there being a change in material circumstances. But I may assume (without deciding) that it is possible to import the doctrine within certain limits to proceedings under this Act so as to prevent repetitive applications of the same nature without there being a change in material circumstances. For instance, it can perhaps be invoked to preclude a subsequent application for registration where an earlier application has been dismissed for want of evidence and the fresh application seeks to make up this deficiency or to preclude an opposition in rectification proceedings on the same grounds as, or different grounds from, those that were considered and rejected while dealing with an opposition lodged at the time of the application for registration. Even so, this principle cannot, it seems to me, be invoked where the original grounds or opposition never came up for consideration at all and the opposition was deemed to have been abandoned because of the party s failure to plance supporting evidence within the time allowed. Exactly the same situations, as in the present case, came up for consideration in lyya Haqar v. RajadaraiMada and Maharajan J. held that there was nothing in the Act or rules which penalises an opponent for failing to file evidence in support of his opposition to an application for registration or precludes him from filing an application for registration, particularly when the opposition had not been considered on merits at the earlier stage. I am, therefore, unable to uphold the preliminary contention on behalf of the respondent that the rectification application should be dismissed as not maintainable. ( 20 ) LEARNED Counsel for the petitioner then urged that the respondent was not entitled to the registration of trade mark No. 324345 as it was not distinctive qua the goods sought to be registered. The objection raised by the petitioner in this regard is somewhat restricted in nature; for, as I shall notice later on, one of the petitioner s claims that the goods in question (viz. mathematical instruments) are also covered by the trade marks they had already obtained and hence the respondent should not have been granted registration in respect thereof. The objection raised by the petitioner in this regard is somewhat restricted in nature; for, as I shall notice later on, one of the petitioner s claims that the goods in question (viz. mathematical instruments) are also covered by the trade marks they had already obtained and hence the respondent should not have been granted registration in respect thereof. The plea that the mark was not distinctive to entitle the respondent to registration is based therefore an the short ground that there was no evidence to show that the trade mark had been used in respect of the goods in question for a sufficient length of time by the date of the application for registration to have obtained a distinctiveness qua those goods. It is said that normally a continuous user of the goods over a period of about three years is taken to confer such distinctiveness and that is why the respondent had Claimed in their application, user since 1-1-1974. But, it is said, this was not a true claim at all. It is submitted that this is borne out by the following considerations: (A) The fact that the affidavit and 121 documents claimed to have been filed are not available on record; (b) The inability of the respondent to produce any copies, list, or broad particulars at least of the documents said to have been so filed is surprising; (c) 121 documents claimed to have been filed could not have represented the entirely of the evidence available with the respondent; he failure to produce any further or other vouchers, accounts letters or documents whatsoever showing sales between 1-1-1974 and December, 1976 is, therefore; very significant; (d) If the respondent really had been using the trade mark, there was no necessity for putting forward the name of Babu Lal and the documents said to have been got from him subsequently. It is not possible to accept this argument. The argument overlooks the fact that the present proceedings are for the rectification of the register and the question for consideration is whether the registration should be cancelled because there was no evidence before the Registrar, when he originally granted registration, in support of the distinctiveness of the mark applied for and not whether the respondent has produced any evidence now to show user since 1-1-1974. As has already been pointed out, the respondent in reply to a requisition from the Registrar s office, produced an affidavit and also filed 121 documents. This fact is quite clear from the records and the respondent cannot be held responsible for the non-availability of the records at this stage. Even the notes of the inspection said to have been contemporaneously taken of the Registrar s records by the petitioner s representative show that an affidavit had been filed by the respondent and that this affidavit also claimed sales since 1-1-1974 (though there is a discrepancy only in regard to the figures of sales between the extract made in the notes and the affidavit copy now produced ). The amount of sales and the period during which the sales took place are no doubt relevant but there is no arithmetical limitation that the sales should be above a particular figure or for not less than a particular period before the mark can be said to gain distinctiveness. That is a matter on which the Registrar had to satisfy himself and he had been so satisfied in the present case. It is, of course, open to an applicant for rectification to draw attention to the evidence on the basis of which registration was granted and to criticise it. But the situation in the present case is such that no valid criticism is available to the petitioner. It is not possible for him to say in the circumstances set out above that, in registering the mark, the Registrar had acted on no evidence. While no doubt, the court may rectify the register if is clear from the record of registration that there was really no acceptable evidence of distinctiveness, the position in the case is not that where there is some evidence before the Registrar and he accepts it, the finding will not be reviewed. Reference may also be made is this connection to the Sulekha case (AIR 1961 Bombay 82) where the court negatived a power in a Registrar, acting under Section 56 (4), to review a finding of distinctiveness given by his predecessor-in-office. ( 21 ) THAT apart, there are also other considerations why the registration here cannot be cancelled. Reference may also be made is this connection to the Sulekha case (AIR 1961 Bombay 82) where the court negatived a power in a Registrar, acting under Section 56 (4), to review a finding of distinctiveness given by his predecessor-in-office. ( 21 ) THAT apart, there are also other considerations why the registration here cannot be cancelled. Section 31 of the Act reads : " (I) In all legal proceedings relating to a trade mark registered under this Act (including applications under Section 55), the original registration of the trade mark and of all subsequent assignments and transmissions of the trade mark shall be prima facie evidence of the validity thereof. (2) In all legal proceedings as aforesaid a trade mark registered in Part A of the register shall not be held to be invalid on the ground that it was not registrable trade mark under Section 9 except upon evidence of distinctiveness and that such evidence was not submitted to the Registrar before registration, if it is proved that the trade mark had been so used by the registered proprietor or his predecessor-in-title as to have become distinctive at the date of registration". It has also been held that, where it is sought to remove from the register a mark, which has been on the register for a long time and which has been openly and largely used by the registered owner, on grounds depending upon the proof of facts existing at the date of registration, the court will give the registered owner, the benefit of doubt : Burroughs Wellcomeand Co. (1904-21 RPC 217-CA), following Cheeseborough Manufacturing Company (1902-19 RPC 342 ). In this case, the respondents have placed on record evidence of continuous and large scale user of the trade mark in the form of several affidavit, advertisements, bills etc. They have filed 496 documents marked E 1 to E 496 and 722 documents marked Fl to F 722 and the only criticism of counsel for the petitioner was that all these were subsequent to 1976. The above principle will, therefore, apply here. Sri Anoop Singh is no doubt right in pointing out that the substantive considerations in an application for registration and in an opposition to registration are largely the same : vide United Chemists Association Ltd. (1923-40 RPC 219 ). The above principle will, therefore, apply here. Sri Anoop Singh is no doubt right in pointing out that the substantive considerations in an application for registration and in an opposition to registration are largely the same : vide United Chemists Association Ltd. (1923-40 RPC 219 ). The two proceedings, however, offer in regard to the onus of proof and the court will not expunge from the register a trade mark unless it can be clearly seen from the record that it ought not to have been placed on the register on the evidence available before the Registrar. That cannot be said in the present case. ( 22 ) REFERENCE may be made here to one of the grounds on which the respondent retaliated to the petitioner s criticism that the respondent s mark had at best, been in use by them for about three years before, the date of application and could not be said to have acquired any distinctiveness qua their goods. It is pointed out that trade mark No. 216758 had been registered asks name of a Lucknow firm as of 24-7-1963 even though user had been claimed only since 1-12-1961, i. e , hardly a period of one year and eight months. It is also alleged that the petitioner, while applying for registration, had originally claimed user only since 27-7-1962 but, when confronted with registered mark No. 216758 corrected this as 22-7-1961. Even so the period of user was only 3 years and 4 months. If these marks could have becom within such a short lime why can the same not be said of his mark, asks the counsel. It is not necessary to deal with this argument in view of my conclusion that there was evidence before the Registrar to show user of the mark since 1-1-1974 and he cannot be said to have erred in treating it as distinctive and registering the same. The period of user is only an indication and no hard and fast rule can be laid down that there should be proved user for such and such a number of years before the mark can be said to be distinctive. ( 23 ) A slightly different basis on which the distinctiveness of the mark was challenged was on the basis of the principle enunciated in wood s case (1886-3 RPC 81 ). ( 23 ) A slightly different basis on which the distinctiveness of the mark was challenged was on the basis of the principle enunciated in wood s case (1886-3 RPC 81 ). In that case, it was held that where a trader before registration of marks had used words to the effect that the goods were manufactured by persons other than himself and at a place other than the actual place of manufacture, the mark could be rectified on the ground that it was not distinctive of his goods. It is said that the respondent, having claimed on 4-11-1977 that the trade mark belonged to Babu Lal, was not entitled to urge that it had become distinctive of their goods by 6-4-l977. I have already dealt with another aspect of the argument put forward by the petitioner on the basis of the letter dated 4-1-1977 and the subsequent surrender and assignment . I think the argument presently under consideration was also untenable. The facts ratio in Woods case were totally different. In that case, Woods bad registered the word "eton" in 1976 in respect of cigarettes. L and B against whom he brought a suit for infringement of the trade mark moved to rectify the register by expunging the mark. This application was eventually allowed on the finding that, before its registration, Woods had sold cigarettes in boxes marked Eton without his own name but with the names of one P. M. Russia and one J. P. of Constantinople. It was pointed out by the Court of Appeal that while persons in the trade-persons knowing the secrets of the trade may have known that the names of PM and JT were fictitious and that the trade mark represented the goods of Woods and so may not have been deceived, it was impossible for any purchasers of cigarettes, not knowing the secrets of the trade, to understand by this that it meant woods cigarettes. On the other hand such marking of the goods tended to show the contrary to such purchasers. The trade itself knew it was a juggle put the public knew nothing about it. In the present case, on the other hand, there has been no representation by the respondent to the normal purchasers of instrument boxes that the goods were those of Babu Lal. Babu Lal is not shown to have been marketing these goods at any time. The trade itself knew it was a juggle put the public knew nothing about it. In the present case, on the other hand, there has been no representation by the respondent to the normal purchasers of instrument boxes that the goods were those of Babu Lal. Babu Lal is not shown to have been marketing these goods at any time. Babu Lal s name appeared nowhere except in the letter to some party dated 6-1-1977. On the other hand, as is clear from the letter itself, the goods were being sold by the respondent under the above mark. There was nothing whatever done by the respondent to lead the members of the public believe that the goods were those of Babu Lal, I do not think, therefore, that the situation in the present case can be equated with that in Woods case. ( 24 ) THE next ground on which the registration of the mark is sought to be expunged is based on Sections ll (a) and 12 of the Act. Section ll (a) prohibits the registration of a trade mark "the use of which would be likely to deceive or cause confusion" and under Section 12 (1)-no trade mark shall be registered in respect of any goods or description of goods which is indentical with or deceptively similar to a trade mark which is already registered in the name of a different proprietor in respect of the same goods or description of goods". A difference between these two provisions will be at once apparent, and has been pointed out in R. T. Engg. Electronics 4 case "whereas Section 12 applies only when the mark applied for is identical with or deceptively similar to a trade mark registered in respect of the same goods or same description of goods, there is no such limitation in regard to the nature of the goods in a case under Section II". Section 11 is deliberately couched in wider language, it exists not merely for the benefit of the traders but also for the benefit of the public at large. It is intended to prevent matter getting on to the register which in public interest should not be there. It is considered desirable that no mark should be permitted to be registered the use of which would be likely to deceive or cause confusion. Such confusion may arise due to any circumstance. It is intended to prevent matter getting on to the register which in public interest should not be there. It is considered desirable that no mark should be permitted to be registered the use of which would be likely to deceive or cause confusion. Such confusion may arise due to any circumstance. It may be by virtue of something inherent in the mark itself or by virtue of its similarity to another mark already in use, whether registered or unregistered. It may arise in respect of the goods themselves or as to their trade source. No doubt public interest has to be protected under Section 12 (1) also but there it is only to avoid deception or confusion that may be caused in the minds of the public if two deceptively similar marks are entered on the register. ( 25 ) SRI Anoop Singh first tried to seek the protection of Section 12 (1 ). He contended that the petitioner had been using this trade mark since 1957 and had got the trade mark NATARAJ (both the word and a sketch of Nataraj) registered several years prior to the application of the respondent. In fact there are three registered trade marks (Nos. 225923, 260466 and 283730) registered on 14-12-1964, 6-11-1969 and 1710-1972 respectively and these are valid and subsisting registrations today. The respondent has copied the trade mark along with its colour scheme of red and black. It is no doubt true that the petitioner s registration was only in respect of pencils, ball pens, refills, erasers, sharpeners and the like and did not specifically cover "instrument boxes" or "geometry boxes", as they are called. But, he says, these are clearly "cognate goods" or "goods of the same description". It was submitted that the registration would cover all stationery goods as they may be compendiously called which are all generally marketed through the same dealers or distributors and purchased also by the same class of persons such as school or college students. ( 26 ) THE answer on behalf of the respondent is that the prohibition Section 12 (1) does not apply here. The goods in respect of which he has registered his trade mark are not the same goods in respect of which the petitioner had registered its. They are also, it is said, not goods of the same description. ( 26 ) THE answer on behalf of the respondent is that the prohibition Section 12 (1) does not apply here. The goods in respect of which he has registered his trade mark are not the same goods in respect of which the petitioner had registered its. They are also, it is said, not goods of the same description. The question whether certain goods are of the same description ascertain other goods has to be decided not on the basis merely of the trade channels through which the goods are sold but also on the true nature and purpose of the goods and it is claimed there is very little in common between the two sets of goods. ( 27 ) IT is unnecessary to refer in great detail to the evidence by way of affidavit and otherwise produced on behalf of the two parties. There is no doubt that the petitioner has been marketing pencils, erasers etc. under the lame and devide of Nataraj over the years, (at least since 1964) and long prior to 1974 when the respondent claims to have started selling geometry tees. They have, however, started manufacturing geometry boxes only since 1982. On the other hand, the respondent has filed its sales tax registration and one or two bills of 1974 as well as the affidavits of Brij Mohan and Chander Bhan Gupta which show that they have been marketing geometry boxes since 1974. These have been marketed with this name and device, certainly from 1976. They have also filed an affidavit of Sri A. K. Goel, Chartered Accountant/certifying on the basis of their books that they have been having substantial sales of geometry boxes from 1973-74 onwards, though the exact figures of turnover of boxes under this trade mark are not mentioned. The affidavits also indicate that to a large extent the goods of the petitioner as well as the respondent are both sold through stationers and very often are also sold at the same counter. There is thus basically not much dispute about the facts and the question whether there has been an infringement of Sections 11 and 12 has to be decided on the basis of almost uncontested facts. There is thus basically not much dispute about the facts and the question whether there has been an infringement of Sections 11 and 12 has to be decided on the basis of almost uncontested facts. ( 28 ) BEFORE discussing the relative merits of these contentions, it will be appropriate at this juncture to refer to certain circumstances relied upon by the respondent in support of the contention that the scope of the petitioner's registration is very limited and cannot be extended to cover geometry boxes. The arguments run thus : (A) The same trade mark consisting of the word NATARAJ and the device of Lord Shiva in a dancing pose had been got registered by Jai Dayal Kapur Distributing Company of Lucknow as of date 24-7-1963 under No. 216758. This was in respect of the following goods falling in class 16 viz. "exercise books, note books, registers, papers of all types and other stationery goods" in the names of R. P. Kapur, V. K. Kapur and S. K. Kapur. When the petitioner applied in 1967 for the registration of their trade mark, the above trade mark had been cited by the Registrar's office as a conflicting mark. After considering the evidence produced by the petitioner, the registration was restricted to "writing pencils" only. Thus, the Registrar had, after considering the matter carefully granted simultaneous registration of the above trade mark in respect of pencils to the petitioner and in respect of note books, paper and other stationery goods to another party. Therefore be no valid objection to a registration of same mark in the name of the respondent in respect of instrument boxes; (b) About three years later, on 30-3-1970, the petitioner moved the Registrar for a rectification of trade mark No. 216758. Their plea was not that the registration granted to the Lucknow firm should be cancelled but only that the petitioner learned on enquiry in the "stationery trade" that the proprietors of the trade mark 216758 had not send the trade mark on any goods other than exercise books, note books and registers and hence the registration should be rectified by deleting the words "other stationery goods" and restricted to the goods on which it had actually been used. This application was opposed by the Lucknow firm. This application was opposed by the Lucknow firm. Ultimately the matter was settled by compromise and on 12-9-1972 the Registrar ordered by consent that the said mark be rectified by amending the specification of the goods thereunder to read as: "exercise books, note books, registers, papers of all types and paper converted articles of school and office stationery". The point made is that if exercises books, note books etc. (or paper converted articles) on the one hand and pencils etc. on the other, though they are used by the same get of consumers and sold though the same trade channels can be different goods, there is on reason why geometry boxes and pencils should be treated as goods of the same description. In particular, it is pointed out that geometry boxes are intended for use of a limited class of consumers viz. , school students who may or may not purchase the pencils and other goods marketed by the petitioner whereas pencils etc. on the one hand and paper etc. on the other cover practically indentical classes of consumers; (c) It is pointed out, in an affidavit filed by the respondent, that when the petitioner applied for registration of trade mark No. 283730 in clause 16 on 27-10-1972, the articles for which the registration was applied for included "rubber bands" also. The Registry pointed out that the mark "nataraj" had already been registered in No. 277340 in respect of 'rubber bans' in the name of Brijlal and Sons of Bombay whereupon the petitioner agreed to delete the reference to 'rubber bands' in its specification. Only thereafter its application was accepted; (d) Much later, in 1977 the respondent applied for registration in respect of instrument boxes. The petitioner became aware of it. It gave a notice of opposition and also sought repeated extensions of time to file evidence in support thereof. Eventually it gave up. This was clearly because the petitioner realised that, on the same logic that it had applied to J. D. Kapur Distributing Company's mark, its registration was confined only to pencils and like goods but not to geometry boxes. Eventually it gave up. This was clearly because the petitioner realised that, on the same logic that it had applied to J. D. Kapur Distributing Company's mark, its registration was confined only to pencils and like goods but not to geometry boxes. That apart, though the petitioner's marks had been registered since 1964, 1969 and 1972 it is admitted case of the petitioner that it started using the trade mark qua geometry boxes only w. e. t. 1-1-1982, This is clear from the fact that the petitioner applied on 17-3-1982 (Nos. 3:s77!0, 387113) for the registration of geometrical instrument boxes and mathematical (drawing) instruments claiming user since 1-1-1982. This fact has been deliberately suppressed by them till a later stage in these proceedings. The respondent in 1977, or indeed till 1982, could, therefore, have obtained the restriction of the petitioner's trade mark to pencils and other like articles not covering geometry boxes just as the petitioner did in respect of trade mark No. 216758. If the petitioner had sought in 1982 to extend its registration to cover geometry boxes, it would have been refused as it is a settled position that extension will not be granted in respect of an existing trade mark so as to come into conflict with another existing mark in respect of the goods qua which extension is sought. The petitioner, without even carrying to seek any extension, has infringed the respondent's trade mark and should not be allowed, when faced with a suit for such infringement, to achieve indirectly, by an application of rectification, what he could not haveobtained directly from the Registrar of trade marks. ( 29 ) I think that while these circumstances may be of some help in knowing what the petitioner itself understood to be the scope of its registrations, they cannot be conclusive against the petitioner. I am, however, inclined to agree with the respondent's contention that instrument boxes cannot be said to be goods of the same description as the goods for which the petitioner had registered trade marks. I am, however, inclined to agree with the respondent's contention that instrument boxes cannot be said to be goods of the same description as the goods for which the petitioner had registered trade marks. But since the provisions of Section 12 (a) involve a larger question, it may be useful to discuss how for the user of the trade mark applied for by the respondent would be likely to deceive or cause confusion and, if the respondent's trade mark passes the more rigid test of Section 11, it may not be difficult for it to pass the test of Section 12 as well. In doing this, it may be first better to clarify the general principles with reference to the decided cases and then apply these to the facts of the case on hand: (1) Thomas Bear and Sons (India) v. Prayag Narain (supra) was decided when there was no statute regulating the use of trade marks in India. The plaintiff firm had been selling for several years cigarettes and tobacco under a trade mark consisting of the design of an elephant. The cigarettes were called "elephant" cigarettes and the tobacco "virginia Bird's eye tobacco" but sale was in tins and packets bearing the elephant trade mark. The defendants started much later the sale of chewing tobacco in tins on which the picture of an elephant and the name "elephant" were prominently displayed and these resembled the plaintiff's trade mark. While the plaintiff's contention was that purchasers were likely to be deceived into thinking that the chewing tobacco was also being manufactured and sold by the plaintiff, resulting in injury to its goodwill, business and reputation, the defendants contended that they were dealing in chewing tobacco which was different from cigarettes and smoking tobacco sold by the plaintiff and that, in any event, the appearance of the label and design on their goods was quite different from the get up and label of the plaintiff's tins and as such customers were not likely to be deceived. There was a difference of opinion between the two learned Judges who decided the case which was referred to a third Judge and by a majority, it was held, affirming the lower court's order, that the suit should be dismissed. There was a difference of opinion between the two learned Judges who decided the case which was referred to a third Judge and by a majority, it was held, affirming the lower court's order, that the suit should be dismissed. Iqbal Ahmed, J. pointed out that the goods were totally different and that no purchaser of chewing tobacco can ever by any stretch of imagination conceive for a moment that, simply because the elephant trade mark is attached to the tin or packet, the same has been manufactured by the plaintiff company particularly when the elephant mark is so commonly used in India in connection with various goods such as kerosene oil, buttons, comb, suckings etc. Niamatullah, J. agreed. After discussing several English cases, he observed: "the rule deducible from the foregoing cases appears to be that the plaintiffs, whose goods have acquired a reputation in the market through a trade mark or name with which their goods have become associated, have a right to restrain the defendant from using a trade mark or name which is identical with or similar to that of the plaintiffs, and such right extends not only to the particular goods sold by the plaintiffs, but also to cognate classes of goods, provided the cumulative effect of the similarity of the mark, the commercial connexion between the plaintiff's goods and those of the defendant and surrounding circumstances is such as to lead the unwary customers to mistake the defendant's goods for those of the plaintiffs. The raw materials with which the articles in question are prepared, any affinity in the process employed in manufacturing them, the fact that the production of one can result from a slight extension of the business of the other, the habits and notions of the customers of the two, and the uses made of the article afford indicia of more or less cogency for determining whether the customers of the defendant's goods are likely to mistake them for those of the plaintiffs. Direct evidence establishing the fact that such impression was created in the past in the minds of certain persons is also of value. The inference to be drawn from all the circumstances should not be speculative, but probable. Direct evidence establishing the fact that such impression was created in the past in the minds of certain persons is also of value. The inference to be drawn from all the circumstances should not be speculative, but probable. The difficulty of a case like this arises mainly from the fact that the Court has to record a finding not in respect of what has happened, but in respect of what is likely to happen. " Reference was made by all the three Judges to certain English decisions: Eno v. Dunn (supra) where the manufacturers of "eno's fruit salt" were able successfully to oppose the registration of "dunn's Baking Powder"; Warwick Tyre Co. Ltd. v. New Motor and General Rubber Co. Ltd (supra) where the manufacturers and sellers of tyres for cycles and motor-cycles under the name "warwick" sued successfully to prevent the manufacturer and sale of motor car tyres under the same name; Eastman Photographic Materials Co. v. John Griffith's Cycle Corporation (supra) where manufacturers of cameras for use by cyclists known as "bicycle Kodaks" were able to get an injunction against manufacture of cycles called "kodaks"; Re Turney and Sons Trade Mark (1894- 10 TLR 175) where the opposition by a firm owning a diamond trade mark registered for beer to a similar trade mark in respect of sum was successful on the ground that whether beer and rum were goods of the same description or not, there was a possibility of deception; and In re. The Australian Wine Importers Ltd (1889-41 Ch. D. 278) where the owners of "golden Fleece" in respect of "spirits" were successful in preventing the registration of a similar mark for Australian Champagne. This decision was affirmed by the Privy Council: See AIR 1940 PC 86. The Privy Council, inter alia, observed: "there can obviously be no monopoly in the use of the trade mark. A manufacturer of cigarettes under an undoubted trade mark such as an animal, or any other device cannot legally object to the use of the identical mark on, say, hats, or soap, for the simple reason that purchasers of any of the latter kinds of goods could not reasonably suppose, even if they were well acquainted with the mark as used on cigarettes, that its use on hats or soap denoted that these goods were manufactured or marketed by the cigarette manufacturer: see (1887) 12 AC 453. " (2) The Supreme Court in Corn Products Refining Co. v. Shangrila Food Products Ltd 5 had occasion to deal with the interpretation of the words "likely to deceive or cause confusion" in Section 8 (a) of the Trade Marks Act, 1940 (to which corresponds Section 11 of the present Act ). The appellant, an American Corporation, had, on 31-8-1942, registered the mark "glucovita" in Class 30 in respect of "dextrose (d-Glucoss powder mixed with vitamins'), a substance used as food or as an ingredient in food; glucose for food". On the same date, the appellants had also registered the same trade mark in class 5 in respect of "infants' and invalids' foods". While so, the respondents applied on 5-11-1949 for the registration of the mark "gluvita" in respect of biscuits in class 30. The Supreme Court upheld the appellant'sopposition to the respondents' mark. The following passages from the judgment may be quoted: "in order that a trade mark may acquire reputation among the general public what is necessary is that the reputation should attach to the trade mark; it should appear that the public associated that trade mark with certain goods. The reputation the reputation of the trade mark and not that of the maker of the goods bearing that trade mark. A trade mark may acquire a reputation in connection with the goods in respect of which it is used though a buyer may not know who the manufacturer of the goods is. " "it is well known that the question whether the two marks are likely to give rise to confusion or not is a question of first impression. " ". . . in deciding the question of similarity between the two marks we 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 the two marks is reasonably likely to cause a confusion between them. " "it was then said that the goods were not of the same description and that therefore in spite of the similarity of the two marks there would be no risk of confusion or deception. We are unable to accept this contention. " "it was then said that the goods were not of the same description and that therefore in spite of the similarity of the two marks there would be no risk of confusion or deception. We are unable to accept this contention. It is true that we have to proceed on the basis that the goods are not of the same description for the purposes of Section 10 (1) of the Act. 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 the appellant and the biscuits produced by the respondent. An average purchaser would therefore be likely to think that the respondent's 'gluvita biscuits' 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) 1940-58 RPC 91 was taken into consideration in arriving at the conclusion that there was likelihood of confusion or deception. The goods in this case were chocolates and laxatives and it was proved that laxatives were often made with chocolate coatings. We may also refer to the "panda" case (In re: an application by Ladislas Jellinck)194663rpc 59. The goods there concerned were shoes and shoe polishes. It was observed that shoe polishes being used for shoes, there was trade connection between them and that this might lead to confusion or deception though the goods were different. The application for registration was however refused under that section of the English Act which corresponds to Section 8 of our Act on the ground that the opponents the manufacturers of shoes, had not established a reputation for their trade mark among the public. " "it is true that in both the above mentioned cases the two competing trade marks were absolutely identical which is not the case here. But that in our opinion makes no difference. 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 different goods is another such test. Ex hypothesi, this latter test applies only when the goods are different. These tests are independent tests. 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 different goods is another such test. Ex hypothesi, this latter test applies only when the goods are different. These tests are independent tests. There is no reason why the test of trade connection between different goods should not apply where the competing marks closely resemble each other just as much as it applies, as held in the 'black Magic' and 'panda' cases, where the competing marks were identical. Whether by applying these tests in a particular case the conclusion that there is likelihood of deception or confusion should be arrived at would depend on all the facts of the case. " (3) In London Rubber Co. Ltd. v. Durex Products Incorporated and another the Appellant, a manufacturer of surgical rubber goods under the trade mark "durex" objected to the registration of the mark in respect of contraceptive devices manufactured by the respondent unsuccessfully before the Deputy Registrar and the High Court. A further appeal was dismissed by the Supreme Court. The registration had been permitted though it was identical with that of the respondent and though the appellant's mark was not registered at the time of the respondent's application upon the ground of honest concurrent use of the mark by the respondent from the year 1928 and also on the ground that there were other special circumstances. The following passages from the judgment wherein certain observations of the High Court (vide AIR 1959 Cal. 56 ) have been approved are of some relevance to the present case: "he (Mukharji, J. ). . . then observed: 'the question of volume of use is always a relevant question in considering 'honest concurrent use' under Section 10 (2) of the Act. It depends on the facts of each case. There is no express statutory emphasis that the use should be large and substantial. Kerly at page 235 of the 7th edition on Trade Marks quotes Re; Lyle and Kinahan Ltd. 's Application, (1907) 24 RPC 249 and other cases for the proposition that it is not necessary for the applicant's trade to be larger than that of the opponent. My own opinion is that the use has to be a business use. It has to be a commercial use. My own opinion is that the use has to be a business use. It has to be a commercial use. It certainly will not do if there is only a stray use; After pointing out that it is not possible to lay down a hard and fast rule on the volume of use necessary under sub-section (2) of Section 10, he gave a pertinent illustration of a small trader who sold goods under a particular trade mark for a long time though his use or sales were small in comparison with big international traders dealing in similar goods bearing a similar trade mark and them observed: 'even so, if there is honest concurrent use I should think the small trader is entitled to protection of his trade mark. Trade mark is a kind of property and is entitled to protection under the law, irrespective of its value in money so long as it has some business or commercial value. Not merely the interest of the public but also the interest of the owner are the subject and concern of trade mark legislation. ' With respect, we agree with the learned Judge that in ascertaining the volume of the use it is relevant to consider the capacity of the applicant to market his goods and whether the use was commercial or of other kind. " (4) Nestle Products Ltd. and others v. M/s Milk made Corporation and another (supra) is a decision strongly relied on for the respondent. Here the plaintiff had registered a number of trade marks, the operative part of which was the word 'milkmaid, and the picture of a milkmaid, in respect of "condensed milk" falling in Class 27) and these marks had been in use by them over various parts of the world including India for about 50 years and more. In or about November, 1970 the respondent, calling itself the "milkmaid Corporation" put on the market biscuits and toffees (in Class 30) under the name "milkmade". On the plaintiff's application, an ex parte interim injunction was given restraining the defendants from marketing their products under the trade mark "milkmade" but this was vacated on hearing the defendants and an appeal was preferred by the plaintiffs. The appeal was dismissed after a very exhaustive review of the cases. On the plaintiff's application, an ex parte interim injunction was given restraining the defendants from marketing their products under the trade mark "milkmade" but this was vacated on hearing the defendants and an appeal was preferred by the plaintiffs. The appeal was dismissed after a very exhaustive review of the cases. In paragraph 17 the following observations in Edwards v. Dennis (supra) are cited: "the registration in the present case has been for the entirety of that class. In my opinion that is wrong, Even if a trade mark can be registered, whichis not in actual use, it ought to be restricted to those goods in connection with which it is going to be used. In my opinion it is not the intention of the Act that a man registering a trade mark for the entire class, and yet only using it for one article in that class, can claim for himself the exclusive right to use it for every article in the Class. Can a man claim registration for all the articles specified in the class when the business he is engaged in comprises only one specific portion of the articles named in the class. I am of the opinion 'he cannot'. To paraphrase that, can a man who is registered in one class claim in respect of articles not comprised in that class, but comprised in some of the other classes ? In the same way, in my opinion, he cannot. " In paragraph 21, reference is made to the importance of the nature of the goods in considering the question of infringement. It was pointed out that in Edward Hack's case (1941-58 RPC 91), the trade mark "black Magic" was seen to have been in use in respect of chocolates on the one hand and articles like lipsticks and Vacuum cleaners on the other. Its registration was held unjustified only in respect of laxatives-which were in the form of chocolates and were sold in the same shops Again, in the case of Ladislus Jellinek (1946-63 RPC 59) the opposition by the registered proprietors of "panda" in respect of shoes was not allowed 10 prevail against the registration of the same word in respect of "shoe polish". Romer, J. observed that while shoes are made to wear, shoe polish is used for cleaning and from this point of view there is nothing common between the two. Romer, J. observed that while shoes are made to wear, shoe polish is used for cleaning and from this point of view there is nothing common between the two. He relied on the observations of Eve, J. in the case of J. and J. Colman Ltd. (1929-46 RPC 126) to the following effect : "one must, I think go a little further and find out what is the real nature of the article. . . I think it is a fair division of the two sets of things to say that one would fall under the description of a condiment and the other under the description of a cereal, and although these goods are found side by side and in juxtaposition when offered for sale and in domestic use, that cannot of itself alter the description of the goods. " Lord Evershed M. R. in J. Lyons and Co. Ltd. (1959 RPC 120) put the matter thus : 'it should be stated that the two things, ice creams and jellies, are not in the same class under the rules for registration of trade marks. This, however, is admittedly irrelevant. Nor, with all respect to the Assistant Comptroller, can I attach much significance to the fact that they may be eaten off the same plate, if he meant, so eaten at the same time : for so might, for example, oast beef and Yorkshire pudding or chops and tomato sauce, respectively goods (I should say) of very different descriptions. But the circumstances in which the two things are used (as I have attempted to state in my more limited description of the kind of sweets which they are) plus the fact that they or their sources for the housewife may be offered for sale side by side on a grocer's counter are, I think, weighty considerations. " (5) In M/s Lakhpat Rai Sampat Rai Sadh v. Dhanpat Rai Goel and another6 a rectification, deleting the device of a bamboo grove, from a trade mark registered in respect of "banslochan" an Ayurvedic medicine, was ordered on the application of the registered proprietors of the same name and trade mark in respect of an Ayurvedic tonic. (6) In Rawal Industries P. Ltd v. Duke Enterprise7, this court was dealing with an application for interim injunction. The plaintiff was manufacturing automobile parts (oil seal and rubber bushes) under the trade mark 'duke'. (6) In Rawal Industries P. Ltd v. Duke Enterprise7, this court was dealing with an application for interim injunction. The plaintiff was manufacturing automobile parts (oil seal and rubber bushes) under the trade mark 'duke'. The second defendant calling himself Duke Enterprises, started selling P. V. C. insulated automobile cables under the same trade mark. The application was granted. Reference was made to the Dunlop Co. case (1899-6 RPC 12) who were the manufacturers of cycle accessories under the name "dunlop" were injuncted from. selling burning oil and graphite under the same name to Bridgestone8 where an opposition Ho the use of "bridgestone" in respect of bicycles and parts thereof (not including rubber tyres and tubes) by a manufacturer of tyres and tubes for heavy vehicles was rejected and Princhard and Constance (Wholesale) Ltd. v. Amata Ltd. and others in which a company manufacturing perfumery toilet preparations and other similar articles under the name 'amani' was granted an injunction to restrain "amani' was granted an injunction to restrain "amata Ltd. " from carrying on manufacture of toilet preparations under its own name. (7) In M/s Jugmug Electric and Radio Co. v. M/s Telerad Pvt, Ltd 9 the respondent was the registered user of the trade mark "telerad" in respect of "radio receiving sets and component parts thereof" in Class 9 since 1-10-1957. The same word with the device of a diamond was also registered in respect of the same goods on 19-5-1960. On 7-8-1964 the appellant also got registered the same word as a trade mark in respect of "domestic electric appliances" in in Class 11 which did not include television or radio receiving sets. The respondent sought cancellation of the appellant's registration. Upholding this claim, it was observed : ". . . there is a real tangible danger of confusion if the trade mark of the appellant is continued to remain on the Register. Certain well known firms like GEC, TELEFUNKEN, PHILIPS and SIEMENS etc. manufacture both the Radios as well as domestic appliances, the impression carried by customers would be that such big firms are capable of manufacturing both the kinds of goods. The respondent being such a firm, the customers can have the same impression about it as they have about the above mentioned firms. The first source of confusion or deception which is, therefore, not only likely but is very probable. The respondent being such a firm, the customers can have the same impression about it as they have about the above mentioned firms. The first source of confusion or deception which is, therefore, not only likely but is very probable. " "moreover; many electrical goods shops not only sell radios but also domestic electrical appliances. The confusion or deception in the minds of the customers is caused because the goods of the appellant and those of the respondent have the same trade channel, namely, both of them are often manufactured by the same manufacturer and both of them are often sold in the same shops. The proximity of the goods of the appellant and the respondent is in respect of the trade channel. For the purpose of section 11 (a) this is sufficient. " "another very important consideration in judging the applicability of Section 11 (a) is the nature of the trade mark. If a trade mark is an invented word, then the first user of such a trademark obviously intends to have a monopoly of it and he will make every attempt to satisfy the authorities acting under the Trade and Merchandies Marks Act to protect hismonopoly of the same. The intention to monopolise the word may not be so obvious when the word constituting a trade mark is not an invented or a coined word but is a common dictionary word. The respondent coined the word "telerad" appropriately because it manufactured radio sets indicated by the combination of the word "tele" with the word "rad". When a person copies as his own trade mark a word previously invented by another person, suspicion immediately arises why the Copyist is trying to imitate the person who has a priority in the trade. The appellant in the present case has not been able to give any satisfactory answer as to why it chose the name "telerad" as its trade mark and why it called itself ''jugmug Electric and Radio Company" when it knew it was not making radios and when it also knew that the word "telerad" was previously being used and was registered as a trade mark by the respondent appropriately because the respondent manufactured radios. It is difficult to remove the impression from the mind of the authorities acting under the Trade and Merchandise Marks Act as also from the mind of the Court that the appellant deliberately copied the trade mark of the respondent to obtain illegitimate advantage of the reputation of the respondent attaching to the said trade mark. It was argued for the appellant that reputation is attached to goods and not to trade mark as such. This very argument recoils on the appellant. It is because the goods of the appellant are in the same trade channel as the goods of the respondent that the probability of the appellant exploiting the reputation of the respondent arisen. What the customers know is that the respondent manufactures radios. The reputation of the respondent certainly attaches to those radios. But the customers are also likely to think that the respondent also manufactures and/or sells domestic electrical appliances firstly because it is common practice for one firm to manufacture both these types of goods and for shops to sell both these types of goods and secondly because both these types of goods are sold under the same trade mark "teterad". What more assurance is needed to a customer to think that a "telerad" domestic electrical appliance is made by the maker of "telerad" radio than the common name "telerad" under which both of them are sold ?" Reference was made to Rustom All Molla v. Bata Shoe Co. Ltd 10 where it was held that the Bata Shoe Company cannot be taken by anyone to be the manufacturers of lungis, to the "bridgestone" case (supra) and the Corporation Products Refunding Co. 's case (supra ). (8) In Tarachand Manoharlal v. Deputy Registrar the appellants made an application for registration of the trade mark DALDA and DALDA BALSAFA in respect of a depilatory soap in Class 3. Hindustan Levers who had registered the trade mark DALDA in 1974 in respect of their Vanaspati opposed the application. The Deputy Registrar upheld the opposition holding that manufacture of soaps came within the trade provenance of the opponents, that the reputation of their Dalda mark extended to the soap trade and that there was little or no distinction between the trade in depilatory soaps and other soaps. The Deputy Registrar upheld the opposition holding that manufacture of soaps came within the trade provenance of the opponents, that the reputation of their Dalda mark extended to the soap trade and that there was little or no distinction between the trade in depilatory soaps and other soaps. On appeal, the High Court held, relying on Shangrila12 that the test of trade connection between the goods had been rightly applied by the Deputy Registrar. The decision in Ferode Ltd. (1945-62 RPC 111) was distinguished where the use of the word 'spitfire' in relation to aeroplanes and toothpaste alike was approved of. (9) In Dalip Chand Aggarwal and others v. M/s Escorts Ltd. , New Delhi13 the appellant sought, in 1963, the registration of the word "escort" in Class 9 in respect of electric irons, electric kettles, soldering iron and elements of electric irons which had been registered by the respondent earlier in 1961 in relation to goods in Class 9 which included the above articles. The registrar allowed registration only because he thought that the respondent's user of the trade mark for a period of about I year and 1 months was hardly sufficient to discharge the onus of proof of use and reputation. This was reversed on appeal by a learned single Judge whose decision was affirmed by Division Bench on further appeal. Reference was made in the course of the judgment to the Dunlop case (supra) already referred to, the Players' case where the registration of the word 'players' was refused in respect of confectionery cigarettes on the opposition of tobacco cigarette manufacturers and the Mickey Mouse case (57 CLR 448) where the registration of 'mickey Mouse' and 'minney Mouse in respect of radio receiving sets and kits was refused on the opposition of the famous Walt Disney. (10) The other English cases referred to before may also be briefly noticed. In the case of John Taylor Peddie (1944-61 RPC 31) milk products for food but not cereal preparations for food were held to be goods of the same description as medicated vitamin preparations in tablet form. It was also held that a short period of honest concurrent use, in combination with other special and exceptional circumstances, may justify registration. In the case of John Taylor Peddie (1944-61 RPC 31) milk products for food but not cereal preparations for food were held to be goods of the same description as medicated vitamin preparations in tablet form. It was also held that a short period of honest concurrent use, in combination with other special and exceptional circumstances, may justify registration. In Darwins Ltd's case (1946-63 RPC 1), holding that steel and steel goods were not goods of the same description, it was pointed out that this issue had to be decided not on any single conclusive test but on the basis of various tests referred to in the reported cases: nature and characteristics of the goods, theirorigin, their purpose, whether they are usually produced by one and the same manufacturer or distributed by the same wholesale houses, whether they are sold in the same shops over the same counter during the same seasons and to the same class or classes of customers and whether by those engaged in the manufacture and distribution of the goods they are regarded an belonging to one and the same trade. In Pan Pre^s Publications Ltd. 's case (1948-65 RPC 193), the applicant company, though incorporated in August, 1943, commenced published only in 1945-46. It sought expunction of the registration, in November, 1943, by the respondents of two trade marks consisting one of the word "pan books" and the other consisting of a representation of the Greek God Pan. The application was dismissed. It was pointed out that the mark could not be said to have been wrongly registered as there was no possibility of deception or confusion at the time of registration in 1943 as the applicants had no reputation in the name at that date. It could not also be said that the marks "wrongly remained on the register (under Section 32 of the English Act corresponding to Section 11) unless on the date on which rectification is sought, its remaining on the register is contrary to some other express provisions of the Act. It could not also be said that the marks "wrongly remained on the register (under Section 32 of the English Act corresponding to Section 11) unless on the date on which rectification is sought, its remaining on the register is contrary to some other express provisions of the Act. Addressing oneself to the facts of the present case in the light of the statutory position as well as the principles that emerge from the decided cases, I find it difficult to say that the respondent's goods are of the same description as these for which the petitioner's regitration ensures or that their use on the respondent's goods is likely to create or cause confusion in the minds of the users of the petitioner's goods. The class of goods in respect of which the petitioner was registered are articles that are used for or in connection with, writing-pens, pencils, erasers, clips, ball point refills and so on. But the nature and purpose of a geometrical or mathematical instrument box is widely different. Though it may and does include a short pencil and eraser as part of it, its essential components are measuring instruments: scale, dividers, compasses, set-squares and protractor. They are tools for measuring, marking and dividing distances and angles. As pointed out by the respondent, neither the pencils or the rubber put in by the respondent in. these boxes; carries the impugned trade mark and, indeed, nobody opens the box to look at the name on the pencil or rubber. Again, though at first thought it may appear that the class of consumers of the two items of consumers are largely common, second thoughts will show that they really are not. Geometrical or instrument boxes are intended for high school and college students; others do not have any use for them. The petitioner's goods, however, cater to a larger, wider and different section of the population and serve a different purpose altogether. They are used by students, not only of high schools and alleges, but also of primary and secondary school classes. They are used in offces commercial establishments and everywhere else where there is need to do some writing. Pencils are sold in a beard boxes and are, except in big establishments, seldom purchased in bulk. Geometry boxes on the other hand are sold in tin or plastic containers and are generally purchased as single pieces. They are used in offces commercial establishments and everywhere else where there is need to do some writing. Pencils are sold in a beard boxes and are, except in big establishments, seldom purchased in bulk. Geometry boxes on the other hand are sold in tin or plastic containers and are generally purchased as single pieces. Generally, pencils are available with a variety of dealers while instrument boxes are not stocked by all those who deal in pencils etc. There is no doubt some connection or association between the two but it is not such as to say that they are articles of the same description or that confusion is likely to arise regarding their source. The respondent also pointed out other differences such as the use of a small boy's picture by the petitioner which is absent in the respondent's goods, the use of the names of the respective manufacturers in broad, bold, letters, some differences in the colour pattern and so on but these are minor features completely domineted by the use of the word 'nataraj' and the device of 'natraj' in. both. Nevertheless, I do not think that the association is more intimate in this case than that between 'shoe' and "shoe polish' or 'semolina' and 'mustard' or between 'milkmaid' condensed milk and 'milkmade biscuits'. It is stressed that both the sets of articles can be described as 'stationery goods' and that, therefore, they fall under the same description and can also cause confusion. But this I think is not sufficient. It is in most cases possible to bring two such articles together under one broad description but that alone is not enough. The monopoly created by registration is not to the user of a word or device altogether but only in relation to goods in respect of which the trade mark is registered and used. In this case, 'stationery goods' is not the desrciption of goods registered for that expression encompasses a large number of articles totally different from those for which the petitioner was registered, such as paper, carbon and duplicating paper, rubber bands, files, notebooks and so on. It had been pointed out that the petitioner itself has recognised and conceded the position that its registration did not extend to some of these: such as exercise books in the case of Jai Dayal Kapoor Distributing Co. It had been pointed out that the petitioner itself has recognised and conceded the position that its registration did not extend to some of these: such as exercise books in the case of Jai Dayal Kapoor Distributing Co. and 'rubber bands' in the case of Brij Lal and Sons. Read in the light of the specifications of goods in Class 16 and in the context of this conduct on the part of the petitioner itself, it seems clear that the attempt to bring various categories of goods under the description 'stationeary goods' and to treat it as covered by the registration of the petitioner is not justified. For the samereasons, the question of the simultaneous existence of the marks being likely to create or cause confusion does not also arise. The problem in this case can also be viewed in the light of Section 12 (3) of the Act. It reads thus : "in case of honest concurrent use or of other special circumstances which, in the opinion of the Registrar, make it proper so to do, he may permit the registration by more than one proprietor of trade marks which are identical or nearly resemble each other (whether any such trade mark is already registered or not) in respect of the same goods or description of goods, subject to such conditions and limitations, if any, as the Registrar may think fit to impose. " Suppose this application for rectification had been made before the Registrar, it would have been permissible for him, taking into account the several circumstances to which reference has been made, to permit the registration to stand side by side. These circumstances are : (a) There are separate registrations under the same trade mark in respect of exercise books and rubber bands with the knowledge and concurrence of the petitioner and this created a bonafide impression on other trades that the petitioner' trade mark and user was confined only to pencils and the like ; (b) The application of the respondent in respect of geometry boxes was sought to be opposed by the petitioner but it was unable to substantiate the opposition and the opposition had to be eventually abandoned ; (c) The respondent has been using this trade mark thereafter in respect of geometry boxes till 1982 with no protest or objection from anybody, much less the petitioner itself. (d) The petitioner, though registered as early as 1964, had confined the use of its trade mark only to pencils and allied articles and never used it in respect of instrument boxes. ( 30 ) IN these cicumstances, I think the Court which has the samepowers as a Registrar on a rectification application; cannot allow the respondent's registration to be cancelled now even if it were to come to the conclusion that there is some similarity and confusion due to the use of these marks. This disposes of the objections under Sections 11 and 12. ( 31 ) RELIANCE was placed, on behalf of the petitioner, also on Section 11 (e) which prohibits the registration of a trade mark "which would otherwise be disentitled to protection in a court". Counsel says that the petitioner had copyright registration in respect of the world 'nataraj' and that the use thereof by the respondent is not entitled to protection in a court of law. This argument is not of much help since all these registrations are in respect of pencils and pen refills. As against this, the respondent has also registered his copyright, apparently in respect of his geometry boxes. It seems there are proceedings pending between the parties under the Copyright Act and it is, therefore, difficult to make use of this circumstance in the manner suggested by the petitioner. ( 32 ) SRI Anoop Singh next made a reference to Section 46 (1) of the Act. It seems there are proceedings pending between the parties under the Copyright Act and it is, therefore, difficult to make use of this circumstance in the manner suggested by the petitioner. ( 32 ) SRI Anoop Singh next made a reference to Section 46 (1) of the Act. This sub-section reads : "46 (1) Subject to the provisions of Section 47, a registered trade mark may be taken off the register in respect of any of the goods in respect of which it is registered on application made in the prescribed manner to a High Court or to the Registrar by any person aggrieved on the ground either- (a) that the trade mark was registered without any bona fide intention on the part of the applicant for registration that it should be used in relation to those goods by him or, in a case to which the provisions of Section 45 apply, by the company concerned, and that there has in fact, been no bona fide use of the trade mark in relation to those goods by any proprietor thereof for the time being up to a date one month before the date of the application ; or (b) that up to a date one month before the date of the application, a continuous period of five years or longer had elapsed during which the trade mark was registered and during which there was no bona fide use thereof in relation to those goods by any proprietor thereof for the time being : Provided that, except where the applicant has been permitted under sub-section (3) of Section 12 to register an identical or nearly resembling trade mark in respect of the goods in question or where the tribunal is of opinion that he might properly be permitted so to register such a trade mark, the tribunal may refuse an application under clause (a) or clause (b) in relation to any goods, if it is shown that there has been, before the relevant date or during the relevant period, as the same may be, bona fide use of the trade mark by any proprietor thereof for the time being in relation to goods of the remedescription being goods in respect of which the trade mark is registered. "the argument of Sri Anoop Singh, based on clause (a), is somewhat difficult to follow. "the argument of Sri Anoop Singh, based on clause (a), is somewhat difficult to follow. He argues, from the fact that the respondent had been using the word NATRAJ (which was registered) only along with the device of Natraj and never alone, that it was never their intention to use the trade mark (i. e. , the word Natraj) per se. The word was used only as a label and not as a trade nark. I am unable to see any force in the submission of the respondent had been using the word Nataraj-and admittedly they have been doing sothe fact that they also used it in conjunction with a device does not seem to make any difference to its user. In support of the contention based on Section 46, Sri Anoop Singh referred to the unreported judgment of the Delhi Circuit Bench of the Punjab High Court dated 11-12-1959 in C. 0. 86-D/1959. In that case, the respondents had obtained registration of their trade mark "tufan Mail Snuff" on 26-6-1944. The registered trade mark consisted of a blank rectangle (3"x2") surrounded by a sort of frame. The words "tufan Mail Snuff" appeared alongwith the top in English and bottom in Urudu. The same words in Urdu and Gurumukhi also appeared in panels on the two sides. It was, however, common ground that over a long period of years their actual labels had carried the picture of a train in the blank space in the registered trade mark. The petitioner's trade mark consisted of a label for covering all sides of a small tin and on the part of it which was evidently intended to be the front, there was a picture of a train bearing the words "royal Frontier Mail". The petitioners sought cancellation of the respondents' trade mark mainly on the ground that the respondents did not get the trade mark registered with bona fide intention of using it and had not in fact ever used their registered trade mark (vide Section 37 of the 1940 Act), though they had been fraudulently using the word "registered" on the trade mark which they have been using which included the picture of a train. The Court found that the respondents' trade mark as registered was evidently incomplete and that the evidence in the case also showed that it was always the intention of the respondents to use the trade mark with a picture in it and not in blank, as registered. It was held, not only that the trade mark was liable for cancellation under Section 37 (l) (a) and (b), but also that it must be held to have been obtained by fraud and hence liable to cancellation. The case cited is clearly distingushable. The respondents there had deliberately got a trade mark registered with a blank in the middle, intending to have it filled up later. The design inside the blank was an integral part of the trade mark and the trade mark as used was totally a different one from that which was registered. There had been no intention at any time to use the trade mark as registered. In the present case, the word Natraj as registered has been used all along. The device of Nataraj is an independent addition, It supplements, explains and describes the registered trade mark but does not supplant or materially alter it, as happened in the cited case. I, therefore, see no force in the contention of Sri Anoop Singh that the respondent's trade mark is liable for cancellation under Section 46. Some criticism was made as to why the respondent had not applied for the registration of the whole (word and device) or both separately and why it had got only a part (i. e. , the word) registered, I see no relevance of this criticism. It may have perhaps open to the respondents to have got both the word and device registered but this can be no ground for cancellation of the trade mark as registered. ( 33 ) 1 have dealt with all the principal contentions urged before me. Some minor and irrelevant aspects were also placed before me which need not be dealt with in great detail. The respondent attempted to refer to certain suits for infringement filed by them and donceded by the defendants. This evidence, all subsequent to the present suit and litigation between the parties, cannot be of much help to them. Some minor and irrelevant aspects were also placed before me which need not be dealt with in great detail. The respondent attempted to refer to certain suits for infringement filed by them and donceded by the defendants. This evidence, all subsequent to the present suit and litigation between the parties, cannot be of much help to them. Reference was made to the fact that both the petitioner and the respondents have been marketing their respective goods not only under this trade mark but also several others but this circumstance again, is of no relevance. The respondent attempted, as the petitioner did, to point out discrepancy in figures of sales given by the petitioner at different stages. While this aspect had some relevance in the context of the petition for rectification viz. , as to whether the respondent had obtained registration by means of fraud or misrepresentation, it is not of much significance, even if true, so far as the petitioner is concerned, in this proceeding. ( 34 ) FOR the reasons discussed above, I have come to the conclusion that the application for rectification of the respondents' registered trade mark No. 324345 cannot succeed. C. O. 2/83 is therefore, dismissed but I make no order as to costs.