D. P. Wadhwa ( 1 ) THIS is an appeal under S. 109 (2) of Trade and Merchandise Marks Act 1958 (for short the Act ) against the order dated 27. 9. 1973 of the Assistant Registrar of Trade Marks, Delhi, whereby opposition of the appellant to the registration of trade mark master applied for by the respondent was dismissed and the respondent (applicant) was held entitled to the registration of the mark MASTER under sub-s. (3) of s. 12 of the Act. ( 2 ) IN this Judgment it will be appropriate to use the word opponent for the appellant and the word applicant for the respondent. ( 3 ) FACTS are in brief. An application was made for registration in Part A of the register of trade marks consisting of the word MASTER per se in class 12 in respect of the specification of goods reading as "parts included in class 12 of motor land vehicles". The registry raised objections to the registration of the mark under Ss. 9 and 12 (1) of the Act in the first instance. It was pointed out that the mark submitted for registration was surname and was not registrable except upon evidence of distinctiveness and further more it conflicted with the registered marls master and master and letter M. of Airtex Products Inc. (the opponent herein) and also a pending application of Master Super Carter Co. The objections were answered by the applicant stating that the word MASTER was not a surname and was registrable with-out evidence and further that the mark of the applicant was not conflicting with the marks REFERRED TO to by the registry "as either the goods differ or the parks are different". Thereafter, the application was advertised before acceptance in the Trade Mark Journal in August, 1969. ( 4 ) AIRTEX Products Inc. , the opponent, entered opposition to the registration of the mark on various grounds falling under Ss. 1 l (a), 1 l (e), 12 (1) and 18 (1) of the Act. The applicant denied the grounds of opposition and stated therein any case Its mark was registrable under S. 12 (3) of the Act. By the impugned order, the learned Assistant Registrar upheld the objections felling under Ss. 11 (a) and 12 (1) of the Act. 1 l (a), 1 l (e), 12 (1) and 18 (1) of the Act. The applicant denied the grounds of opposition and stated therein any case Its mark was registrable under S. 12 (3) of the Act. By the impugned order, the learned Assistant Registrar upheld the objections felling under Ss. 11 (a) and 12 (1) of the Act. He held that the opponent s objection under S. 1 l (e) was not sustainable as the opponent did not sub-stantiate the allegation that the mark in question was not entitled to protection in the court of law. He, however, held that the applicant was entitled to registration under S. 12 (3) of the Act. The Assistant Registrar also observed that it was alleged by the opponent that the applicant was that the proprietor of the mark in question, but, however, in view of the user established by the applicant, which was accepted by the Assistant Registrar, he held that he was unable to sustain the opponent s objection under S. 18 (1) of the Act as well. Accordingly, application for registration was allowed. ( 5 ) THE opponent slated that it was an old established concerned carrying on business as manufacturer and marketing components for automobiles included in class 12. It was the registered proprietor in India of the trade mark consisting of the word master per se registered under No. 150462 in class 12 in respect of components for automobiles such as cars, trucks and buses. The acceptance of this trade mark was advertised in the Trade Marks Journal dated 1. 6. 1952 and the registration was valid and in force. It was also stated that the opponent was also the registered proprietor in India of the trade mark consisting of the word m. MASTER registered under No. 192124 in class 12 in respect of parts and fittings all included in class 12 for automobiles. The acceptance of this trade mark was advertised in the Trade Marks Journal of 16,9. 1962 and the registration was valid and in force. The opponent filed its affidavit to show that the mark MASTER of the opponent had been in use in India since 1936 and the mark M. MASTER since 1954. Its statement of sales of goods bearing the marks MASTER and M. MASTER from 1936 uptil 1969 was filed with the affidavit. 1962 and the registration was valid and in force. The opponent filed its affidavit to show that the mark MASTER of the opponent had been in use in India since 1936 and the mark M. MASTER since 1954. Its statement of sales of goods bearing the marks MASTER and M. MASTER from 1936 uptil 1969 was filed with the affidavit. The opponent then stated that by reason of long and extensive user of its marks, these became exclusively associated by the trade and the public in India with the goods of the opponent and none other. It said that purchasers of the goods of the applicant under the mark MASTER would believe that the goods were those of the opponent or that the applicant s firm was associated with the opponent. The opponent stated that there would be inevitable confusion and if the mark MASTER was registered in favour of the applicant, it would calculate to facilitate and lead to passing off as and for the goods of the opponent. The purchasers would be deceived as the goods were the same and so was the mark. The opponent also stated that registration as sought for by the applicant would cause embarrassment to the opponent and would be prejudicial to the established reputation of the marks of the opponent. The opponent then said that the use of the mark MASTER by the applicant was not honest and it wanted to trade upon the reputation and goodwill of the opponent. The opponent also REFERRED TO to an application of a firm M/s United Spring Manufacturing Co. which wanted to register the mark LOADMASTER in class 12 in respect of "springs for vehicles, carriage springs, bearing springs, shock absorbing springs, all being goods included in class 12". On the objection raised by the opponent the application for registration was rejected by order dated 15. 5. 1967 of the Deputy Registrar (Co-ordination) of the Trade Marks Registry, Bombay. The opponent also REFERRED TO to proceedings for registration of the mark TASKMASTER by M/s Escorts Ltd. in respect of "components for automobiles such as cars, trucks and buses, all goods included in class 12", There was opposition to this by the opponent and then M/s Escorts Ltd. agreed to restrict the mark TASKMASTER to three-wheeled vehicles only as applied for. The opponent also said that if there was. The opponent also said that if there was. any user of the mark MASTER by the applicant, as alleged, it was not honest and there could be no honest concurrent use of the mark by the applicant and there was no other special circumstance which would entitle the applicant to get the mark registered under sub-s. (3)of Section 12 of the Act. ( 6 ) THE applicant filed its reply to the opposition and also filed the affidavit of one of its partners and also brought on record certain invoices, price-lists and advertisements of its mark MASTER, to contend that it was manufacturing goods since the year 1960 and the trade mark MASTER was associated with the applicant s business and distinguished the applicant s goods from those of other manufacturers. The applicant denied that the opponent had been manufacturing and selling parts included in class 12 of motor land vehicles. The applicant said that the word MASTER was not an invented word and was an ordinary dictionary word. It asserted that the mark MASTER was associated with its goods and it had its own reputation and goodwill and there was no question of any deception or the applicant passing off its goods as those of the opponent. It was pleaded thatthe user of the mark MASTER had in any case been honest and concurrent. The applicant on affidavit also brought out the sales of its goods under the mark MASTER for the period from the years 1960-61 to 1967-68. The sales increased from Rs. 56,791 in the year 1960-61 to Rs. 2,51,918 in the year 1967-68 The applicant also filed three trade affidavits to show that it had been selling its goods under the mark MASTER since 1961. ( 7 ) IF now reference is made to the documents brought on record by the applicant, it will be seen that the applicant had also been dealing in Bakelite Moulding Presses and other electrical accessories. Rather it would appear that earlier the principal business of the applicant was manufacture and sale of Master Bakelite Moulding Presses. The earliest advertisements put in by the applicant are of the years 1964 and 1965. These give the pictures of Bakelite Moulding Presses stating to be available in all sizes. Then it is added, "bakelite MOULDING PRESSES, DIES, ELECTRICAL ACCESSORIES AND AUTO PARTS ARE OUR SPECIALITY". The earliest advertisements put in by the applicant are of the years 1964 and 1965. These give the pictures of Bakelite Moulding Presses stating to be available in all sizes. Then it is added, "bakelite MOULDING PRESSES, DIES, ELECTRICAL ACCESSORIES AND AUTO PARTS ARE OUR SPECIALITY". There is one advertisement of Master Quality Auto Ignition Parts. This is of the year 1964-65. This photograph also shows Bakelite Moulding Press. Wholesale price-lists of the applicant of the Auto Ignition Parts under the me MASTER have also been filed and these mainly pertain to Master Bakelite Moulding Press. Then there are three or four trade enquiries regarding price-list of Master Brand Motor Accessories but these are of the period 1965 to 1967. Thus, as noted above, though in the three trade affidavits it is mentioned that goods under the mark MASTER were being sold by the applicant since 1961, the documents on record pertain to the period 1964 onwards. ( 8 ) ON the basis of the aforementioned record, the learned Assistant Registrar of Trade Marks held that the opponent had been using its mark prior to the filing of the application for registration of the mark by the applicant. He also held that there could not be any doubt about the. similarity of the rival marks and the goods. He posed a question if the mark applied for if used in a normal and fair manner in connection with any goods covered by the registration proposed, would not be reasonably likely to deceive or cause confusion amongst substantial number of persons. He answered this question in the affirmative holding that the opponent had handsome turnover of its goods and on account of reputation acquired by the opponent s mark, the use of an identical or deceptively similar mark by another- person was bound to cause confusion and deception among the trade and the general public. He was further of the view that on seeing the applicant s mark MASTER on any of the goods, the traders and the general public would wonder and think that such products were of the opponent s origin, manufacture and merchandise. He was further of the view that on seeing the applicant s mark MASTER on any of the goods, the traders and the general public would wonder and think that such products were of the opponent s origin, manufacture and merchandise. He also observed that it was not necessary to probe into the question of reputation of the opponent s mark in deciding the question under Section 11 of the Act and that it was enough if the opponent established use of its mark prior to the date of filing of the application Section 11 (a) of the Act provides that a mark the use of which will be liable to deceive or cause confusion shall not be registered as a trade mark. The Assistant Registrar of Trade Marks, therefore, held that considering the close resemblance of the applicant s mark, he was of the view that opponent s objection under Section 11 (a) of the Act was maintainable. He also held that the objection under Section 12. 1) of the Act was maintainable as the opponent was holding registration in respect of the words master and m. MASTER in respect of the goods falling in class 12 and there was no dispute about the similarity of the rival marks and the goods. The Assistant Registrar than examined if the registration could be granted under sub-s. (3) of S. 12 of the Act. He rightly held that the onus was entirely on the applicant to show that it was entitled to registration under this provision and that the applicant was to establish : (1) honesty of concurrent user ; (2) the quantum of concurrent user having regard to the duration, area and volume of trade and to the goods concerned : (3) the degree of confusion likely to ensure from the resemblance of the opponent s and the applicant s marks ; and (4) whether any instance of confusion had in fact been proved and that their relative incovenience which would becaused to the parties if applicant s mark was registered. The Assistant Registrar then observed that it was the applicant s case that it had adopted the mark MASTER as it was a common, well-understood dictionary word and that the word MASTER had been commonly used by several traders to distinguish their goods. The Assistant Registrar then observed that it was the applicant s case that it had adopted the mark MASTER as it was a common, well-understood dictionary word and that the word MASTER had been commonly used by several traders to distinguish their goods. He agreed with the submission of the applicant that there did not appear to be any intention on the part of the applicant to trade upon the goodwill and reputation of the opponent s registered trade marks and the case would have been different had it been an invented word, but since that was a dictionary word and that too a very commonly well understood word, it could not be said that the applicant had adopted the mark dishonestly. The Assistant Registrar held that the applicant had been selling its goods under the mark MASTER right from 1960 till date and its sales had progressively increased. He observed that the opponent did not rebut or contradict the evidence of the applicant. The Assistant Registrar was thus of the view that considering the evidence before him he had to infer that the applicant had been openly and extensively using the mark since 1960 and, in the circumstances, therefore, it was entitled to registration under Section 12 (3) of the Act. ( 9 ) AT this stage, relevant portions of Ss. 11 and 12 of the Act may be set out: "11. Prohibition of registration of certain marks- A mark- (a) the use of which would be likely to deceive or cause confusion ; or (A) x x x xxx (e) x x x xxx (d) X X X X XX (e) x x x xxx shall not be registered as a trade mark. " "12. Prohibition of registration of identical or deceptively similar trade marks - (1) Save as provided in sub-section (3) no trade mark shall be registered in respect of any goods or description of goods which is identical with or deceptively similar to a trade mark which is already registered in the name of a different proprietor in respect of the same goods or description of goods. (2) x x x xxx (3) 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. " ( 10 ) IN support of the appeal, Mr. R. K. Makhija, learned counsel for the opponent, substituted that the Assistant Registrar of Trade Marks erred in holding that the applicant had established honest concurrent use of the mark. He said there was no special circumstance in the case for the mark to be registered as required under sub-s. (3) of S. 12 of the Act. He said evidence was too meagre for the Assistant Registrar to come to the con-clusion that there was an honest concurrent use of the mark Trade affidavits pertained to the persons of Delhi only. Mr. Mukhija also said that it was not for the Assistant Registrar to say that the word MASTER was a dictionary word and that too a very common, well understood word. Mr. Makhija said that the case could not be any different if the word was an invented word. He said once the Assistant Registrar held that the case fell under clause (a) of S. 11 of the Act, the registration of the mark was prohibited as the Assistant Registrar found that use of the mark would be likely to deceive or cause confusion. In support of his submission, reference was made to two Branch decisions of Bombay and Delhi High Court. In Kanshiram Surinderkumar v. Thakurdas Deoomal Rohire,1 the court held that S. 12 (3) was an evident exception to S. 12 (1) prohibiting the registration of a mark identical to the mark already registered. Itwas, therefore, clear that for the identical marks which did not all under S. 12 (3), the said protection was not extinded and they could not be registered because of the provisions of S. ll (a ). Itwas, therefore, clear that for the identical marks which did not all under S. 12 (3), the said protection was not extinded and they could not be registered because of the provisions of S. ll (a ). The court rejected the contention of the applicant therein that because of the provisions of S. 12 (3) of the Act, the consideration as to purity of Register in public interest in case of identical marks would not arise. The court held that in its view in the case of identical marks falling within S, ll (a), the question of purity of Register in public interest was a primary consideration as against the question of acquiescence, or delay unless the same had caused substantial injury to the applicant so as to outweigh the question of public interest. On the facts of that case, the court held that it could not be said that there was an honest concurrent user of the mark by the applicant. In Dalip Chand Aggarwal v. M/s Escorts Ltd. 2, the Assistant Registrar registered the trade mark. escort on the application of the appellant under S. 12 (3) of the Act. The respondent filed an appeal against that order which was allowed by a learned single Judge of this court. Against that judgment, the applicant appealed to. a Division Bench. In this case, the trade mark, which was sought to be registered by the appellant, was similar to the one for which registration had already been obtained by the respondent. It was also a common case that the goods covered by the appellant s proposed registration application were also covered by the registered trade mark which was obtained by the respondent in 1963. The court observed that prime facie, therefore, the applicant s application for registration would be liable to be rejected because of the bar both under Ss. 1 l (a) and 12 (1) of the Act. Even the Registrar had found on this aspect against the appellant and that the only reason why he was persuaded to allow the registration was because he took the view that the user by the respondent of the trade mark was only from May 1961 and a period of a year and ten months was hardly sufficient to have discharged the onus of proving use and reputation which was upon the respondent-opponent. The court observed that the Assistant Registrar had not given proper relevance to the requirement of the quantum of con-enrrent user shown by the applicant having regard to the duration, area and volume of trade and also to the degree of confusion likely to ensue from the resemblance of the applicant s and the opponent s mark. The court found that the sales of various goods by the respondent under the trade mark escort ran into crores of rupees and the respondent was a well known manufacturing company while the user by the appellant was undoubtedly of very limited nature to the tune of a few lakhs of rupees. The court observed as under : "in that state of affairs it could not really be said that there was an extensive user by the appellant as to satisfy the test of concurrent user within the terms of Section 12 (3) of the Act. It is no doubt applicant s, trade to be larger than the opponent s but then the extent of the business interest of the proprietor and the interest of the public have all to be correlated in deciding whether applicant s mark should be registered or not. In this connection it is relevant to note that there is no absolute right to have the mark registered and if the court is in any doubt that if the mark will cause confusion, registration will be refused. There is of course no fixed rule as to the minimum period of honest concurrent use necessary to lead to registration. " ( 11 ) REFERENCE may, however, be made to a decision of the Supreme Court in London Rubber Co. v. Durex Products Inc. 3 In this case, the respondent applied for registration of the mark durex used by it on certain contraceptive devices. The appellant lodged opposition claiming to be the proprietor of the trade mark durex . Though the mark Durex by the appellant was in use for considerable number of years, it was not, however, registered at the date of the respondent s application. The appellant lodged opposition claiming to be the proprietor of the trade mark durex . Though the mark Durex by the appellant was in use for considerable number of years, it was not, however, registered at the date of the respondent s application. The objections of the appellant were overruled by the Deputy Registrar of Trade Marks upon the ground of honest concurrent use of the mark by the respondent for a number of years and also on the ground that there were other special circumstances This case was under the Trade Marks Act 1940 and the sections which were under consideration were Ss. 8 and 10 of that Act. Though the language is different the effect of S. 8 (a) and S. 10 (1) and (2) of the 1940 Act is the same: as that of S. 1 l (a) and S. 12 (1) and (3) of the present Act. Against the order of the Deputy Registrar of Trade Marks, the appellant filed an appeal in the Calcutta High Court which was dismissed and on a certificate granted by the High Court, an appeal in the Supreme Court was filed. One of the contentions was that as the marks were identical, deception of various purchasers was inevitable and that, therefore, registration had to be refused under S. 8 (a) of the 1940 Act. In admitting the mark to registration, the Deputy Registrar was, according to the appellant, in error in applying the provisions of S. 10 (2) inasmuch as the provisions of S. 8 (a) were not subject to those provisions. The Supreme Court examined the provisions of S. 8 (a) and S. 10 (1) and came to the conclusion that the object of both these provisions was to prohibit from registration marks which were likely to deceive or cause confusion. While clause (a) of S. 8 was wide enough to cover deception or confusion resulting from any circumstances whatsoever, Sub-s. (1) of S. 10 was limited to deception or confusion arising out of similarity in or resemblance between two marks. In other words, the enactments of this provision would show, that where there was identity or similarity in two marks in respect of the same goods or goods of the same description, registration at the instance of another. proprietor would be prohibited where Trade mark was already on the register as being the property of another proprietor. In other words, the enactments of this provision would show, that where there was identity or similarity in two marks in respect of the same goods or goods of the same description, registration at the instance of another. proprietor would be prohibited where Trade mark was already on the register as being the property of another proprietor. Where the deception or confusion arose because of resemblance with a mark which was registered, objection to registration might come under S. 10 (1) as well. The Supreme Court therefore, held that it saw no reason for holding that the provisions of S. 8 (a) would not apply where a mark identical with or resembling that sought to be registered was already on the register. It held that the language of S. 8 (a) was wide enough and though upon giving full effect to that language the provisions of S. 10 (1) would, in some respects, overlap those of S. 8 (a), there could be not jurisdiction for no giving full effect to the language used by the Legislature. The court also held that in its opinion the provisions of Sub-s. (2) of S. 10 were by way of an exception to the prohibitory provisions of the Trade Marks Act 1940 and that those provisions were contained in S. 8 (a) and S. 10 (a) thereof. The court then examined the question if the Deputy Registrar was right incoming to the conclusion that there was honest concurrent use of the mark by the respondent. It was conceded that there was honest use in the case but there was no concurrent use within the meaning of S. 10 (2 ). Evidence was led in the case by the respondent for establishing the volume of use of the mark in India which evidence was accepted by the Deputy Registrar. The court observed that in ascertaining the volume of the use, it was relevant to consider the capacity of the applicant to market his goods and whether the use was commercial or of other kind. It held that ordinarily it would be sufficient if it was shown that there was a commercial use of the mark. The court further held that the honest concurrent use of the marks by the respondent for a considerable period had been established in the case. The court also examined the special circumstances existing in the case. It held that ordinarily it would be sufficient if it was shown that there was a commercial use of the mark. The court further held that the honest concurrent use of the marks by the respondent for a considerable period had been established in the case. The court also examined the special circumstances existing in the case. The High Court had given four such special circumstances : (1) the word durex was the name of the respondent company itself ; (2) it was in use for a considerable period of time ; (3) the socio-economic consideration of the user of the contraceptives ; and (4) the respondent s mark was largely confined to contraceptives for use by women and the appellant in its letter had admitted that the application for registration by the respondent was for very different goods. The Supreme Court held that in its opinion, the first, second and fourth circumstances could be properly regarded as special circumstances and would justify registration though not the third one. It observed that the reason is that a special circumstance must beconnected with the use of the mark. Lastly, the Supreme Court held that the respondent had discharged the burden of establishing that there was no reasonable probability of confusion as not a single instance of confusion had been pointed out. There was also no likelihood of confusion or deception because the respondent s goods were confined to contraceptives for use by women which could only be used with medical assistance while the appellant s contraceptives were essentially for men. Ss. 12 (1) and (2) of the English Trade Marks Act is same as Ss. 12 (1) and (3) of the Act though the language used is slightly different. In Kerly s Law of Trade Marks and Trade Names (Twelfth Edition), it has been pointed out that all the surrounding circumstances of each case have to be taken into account before a mark is accorded the privilege of concurrent registration under S. 12 (2) and a consideration of the surrounding circumstances includes the consideration of the degree of deception and confusion likely to arise from the use of the two marks. This renders the provisions flexible and adaptable to each case as it arises. This renders the provisions flexible and adaptable to each case as it arises. Further in deciding cases under this section, the tribunal will consider the public interest as well as the rights of the applicants inter se, and, unless, the public are. protected, will not give effect to an agreement for concurrent registrations of identical marks, at all events in the absence of special circumstances. An opponent who has no merits may succeed on public grounds, e. g. that the mark is likely to cause under confusion. It has been said, however, that confusion is unimportant if the concurrent use was bonafide and it is just to register. It is further pointed out that the main matters which the tribunal should take into account under Sub-s. (1) were laid down by Lord Tomlin in Pirie (1933) 50 R. P. C. 147 (House of Lords), and these matters are : " (1) The extent of use in time and quantity and the area of the trade ; (2) the degree of confusion likely to ensue from the resemblance of the marks which is to a large extent indicative of the measure of public inconvenience ; (3) the honesty of the concurrent use ; (4) Whether any instances of confusion have in fact bene proved ; and (5) the relative inconvenience which would be caused if the mark were registered, subject if necessary to any conditions and limitations. " ( 12 ) REGISTRATION of the trade mark is prima facie evidence of the validity thereof. There are certain rights which flow in favour of the person whose mark is registered. Subject to the provisions of the Act, registration of a trade mark gives to the registered proprietor thereof the exclusive right to the use of the trade mark in relation to the goods in respect of which the trade mark is registered and to obtain relief in respect of infringement of the trade mark in the manner provided by the Act. These rights will certainly be impaired when an identical mark or a mark resembling to the registered mark in respect of the same goods or description of goods is registered. That will be so even if the second mark is registered subject to conditions or limitations as the Registrar may think fit to impose. These rights will certainly be impaired when an identical mark or a mark resembling to the registered mark in respect of the same goods or description of goods is registered. That will be so even if the second mark is registered subject to conditions or limitations as the Registrar may think fit to impose. Onus of establishing honest concurrent use of the mark, which is on the applicant, has, therefore, to be property discharged. ( 13 ) IN the present case, the Assistant Registrar held that the opponent had been using its mark prior to the application for registration of the mark by the applicant. He also held that the opponent established the necessary user in respect of its mark. Objections under Ss. ll (a) and 12 (1) of the Act were held to be maintainable. The Assistant Registrar also set out the principles which would entitle the applicant to the benefit of S. 12 (3) of the Act. These principles are more or less the same as mentioned above. The Assistant Registrar was persuaded to register the mark of the applicant under S. 12 (3) of the Act on the ground that the word MASTER was a common, well understood dictionary word and it was used by many traders to distinguish their goods. He also held that the case would have been different if it had been an invented word. He, therefore, held that the applicant had no intention to trade upon the mark of the opponent and that the applicant had been openly and extensively selling his goods under the mark MASTER since 1960. Other principles were either not considered or, if considered, not properly dealt with. It is not the case of the applicant that it was not aware of the mark of the opponent Rather, when it was pointed out by the Trade Marks Registry, the case of the applicant was that the mark was different and goods were also different. The question of purity of Register in public interest was of prime consideration particularly when objections under S. ll (a) of the Act were held to be well taken. The fact that the word MASTER is a common, well understood dictionary word would not in itself be enough to show honest concurrent use of the mark. It may well be a special circumstance in a certain case. The fact that the word MASTER is a common, well understood dictionary word would not in itself be enough to show honest concurrent use of the mark. It may well be a special circumstance in a certain case. The applicant did not show as to how it hit upon the mark MASTER which was already a registered trade mark of the opponent. I do not think the case would have been any different if the word was an invented one. No special circumstance has been held to exist for registration of the mark under S. 12 (3) of the Act and none alleged. The evidence of user of the mark by the applicant has been very meagre. The sale figure given by the applicant cannot be said to pertain only to the goods of the description of the opponent but these figures, it appears, also take into account the sale of other items by the applicant. Documentary evidence shows that user of the mark by the applicant is of recent origin. The applicant has not discharged the burden which was on it to prove honest concurrent use of the mark in question. In the end, I will note that while examining the case under S. 12 (3) of the Act, the Registrar has also to see and protect the interest of unwary public as well and the case is not to be examined merely from the angle of the applicant and the opponent. ( 14 ) THE result of the above discussion is that the present appeal succeeds, and the impugned order is set aside and the application of the respondent for registration of the mark MASTER rejected. There will, however, he no order as to costs.