JUDGMENT : K. Ramamoorthy, J. CM. (M) is an appeal against the order of the Assistant Registrar of Trade Marks, Delhi dismissing the application for opposition filed by the appellant and allowing the application filed by the first respondent for registration of the trade mark in Class II. 2. The respondent, on the 19th of August, 1985, applied for registration of trade mark 'OSHAM' in respect of the portable lamps stands, room heater, hot air calculators, domestic baking ovans (electric), fans and heating elements under Class 11. The first respondent claimed user of the mark since August, 1980. On the 14th of November, 1992, the appellant gave a notice of its intention to oppose the registration of trade mark contending, inter alia, that under the provisions of Sections 11(a),12(1),12(3) and 18(1) of the Trade and Merchandise Marks Act, 1958, hereinafter referred to as the Act, the appellant was entitled to oppose the registration of trade mark. 3. On the 28th of February, 1994, the first respondent filed its counter statement. 4. The first respondent, subsequent to the filing of the application, sought the deletion of a portion of the application with reference to portable lamp stands. The Assistant Registrar of Trade marks, considering the facts and circumstances, took the view that the application for opposition was without any substance and rejected the same and allowed the application filed by the first respondent for registration of trade mark. 5. Dealing with the point raised by the appellant under Section 12(1) of the Act, the Assistant Registrar of Trade Marks held : "Firstly, I take up the issue under Section 12(1) of the Act. This sub- section prohibits the registration of a trade mark which is either identical or deceptively similar to the registered trade matk already registered in the name of some other proprietor and the goods under the mark sought to be registered are also either the same or of the same description as that of the goods under the registered trade mark in the name of that other proprietor. In the instant case the mark sought to be registered is OSHAM and the opponents already registered under No. 112537 and 165594 is a word OSRAM. The point in issue is whether the word OSHAM is deceptively similar to the word OSRAM. In the instant case the mark sought to be registered is OSHAM and the opponents already registered under No. 112537 and 165594 is a word OSRAM. The point in issue is whether the word OSHAM is deceptively similar to the word OSRAM. The expression deceptively similar has been defined under the Act at Section 12(1)(d) as 'the mark shall be deemed to be deceptively similar to another mark if it so merely reassembles that other mark as to be likely to deceive or cause confusion'. Keeping in view of the aforesaid definition of the expression deceptively similar, the two competing trade marks in order to be deceptively similar have not only to be similar to each other but the similarly must be so near as to likely to deceive or cause confusion. It is well established that while comparing the two trade mark the tribunal has to compare both the marks phonetically as well as visually. In the instant case the trade mark 'OSHAM' and 'OSRAM' are having some visual similarity but phonetically both are giving the different phonetic impression. The very presence of the alphabets 'S', 'H' provide the word OSHAM quite a different phonetic impression than that of the word OSRAM, because of the peculiar pronunciation in English, of the combination of the letters 'S and H'. In the word OSHAM the alphabets 'S', 'R' gives the sound of two different consonant while in the word OSRAM the alphabets 'S', 'H' give the sound one consonant as stated above. Under these circumstances the word OSHAM is quite different then the word OSRAM phonetically. As already mentioned the comparing trade marks must not only be similar to each other but also the similarity must be as to likely to deceive or cause confusion in the minds of the consumers, as provided under Section 2(1)(d) of the Act. The phonetic difference between the trade mark OSRAM and OSHAM is enough to alley the likelihood of confusion or deception. Thus the similarity between the trade marks is not as to likely to deceive or cause confusion in the minds of the purchasing people. Under these circumstances, the first requirement of Section 12(1) of the Act is not fulfil, hence, the registration of the marks applied for namely OSHAM is not prohibited by the provision of Section 12(1) of the Act." 6. Mr. Under these circumstances, the first requirement of Section 12(1) of the Act is not fulfil, hence, the registration of the marks applied for namely OSHAM is not prohibited by the provision of Section 12(1) of the Act." 6. Mr. Naveen Chawla, the learned counsel for the appellant, submitted that the view taken by the Assistant Registrar of Trade Marks cannot be sustained in law. The learned counsel, in his rejoinder arguments, sought to rely upon the judgment of the Supreme Court in Amritdhara Pharmacy v. Satya Deo Gupta, AIR 1963 SC 449 . 7. The principles laid down by the Supreme Court in "Amritdhara Pharmacy v. Satya Deo Gupta (supra), are very clear. In my view, the Assistant Registrar of Trade Marks had applied the principles correctly and the view taken by the Assistant Registrar of Trade Marks is in accordance with the principles laid down by the Supreme Court. 8. Dealing with the point under Section 14(a) of the Act, the Assistant Registrar of Trade Marks held that the marks is not deceptively similar to the trade mark OSRAM. 9. Dealing with the point under Section 18(1) of the Act, the Assistant Registrar of Trade Marks rejected the contention of the appellant. Section 18 of the Act reads as under : "18. Application for Registration (1) Any person claiming to be the proprietor of a trade mark used to proposed to be used by him, who is desirous of registering it, shall apply in writing to the Registrar in the prescribed manner for the registration of his trade mark either in Part A or in Part B of the register. (2) An application shall not be made in respect of goods comprised in more than one prescribed class of goods. (3) Every application under sub-section (1) shall be filed in the office of the Trade Marks Registry within whose territorial limits the principal place of business in India or the applicant whose name is first mentioned in the application as having a place of business in India, is situate : Provided that where the applicant of any or the joint applicants does not carry on business in India, the application shall be filed in the office of the Trade Marks Registry within whose territorial limits the place mentioned in the address for service in India as disclosed in the application, is situate. (4) Subject to the provisions of this Act, the Registrar may refuse the application or may accept it absolutely or subject to such amendments, modifications, conditions or limitations, if any, as he may think fit. (5) In the case of an application for registration of a trade mark, (other than a certification trade mark) in Part A of the register, the Registrar may, if the applicant to desires, instead of refusing the application, treat it as an application for registration in Part B of the register and deal with the application accordingly. (6) In the case of a refusal or conditional acceptance of an application, the Registrar shall record in writing the grounds for such refusal or conditional acceptance and the materials used by him arriving at his decision." 10. The appellant does not dispute the fact that the first respondent had already registered its mark 'OSHAM' with reference to the electric appliances.... included in Class 9. That application was filed along with the application filed by the first respondent for registration under Class 11, which is the subject matter. It is also now projected by the first respondent that the first respondent filed another application on the same date for registration of trade mark 'OSHAM' in respect of mixer, juicer, grinders and washing machines included in Class 7. That was opposed by one Chinar Trust, C-37, Connaught Place, New Delhi. By order dated 17.12.1993, the Assistant Registrar of Trade Marks dismissed the opposition and directed registration of the trade mark 'OSHAM' with reference to the goods come under Class 7. 11. The learned counsel for the appellant, Mr. Naveen Chawla, submitted that application for registration is distinct and separate and each has to be decided in respect of the goods coming under different lasses and if the respondents had registered its trade marks in respect of Class 9, that would not, in any way, affect the right of the appellant to oppose the registration of the trade mark 'OSHAM' by the first respondent of the goods coming under Class 11. 12. The learned counsel of the appellant, Mr. Naveen Chawla, referred to Rule 26 of the Act. 12. The learned counsel of the appellant, Mr. Naveen Chawla, referred to Rule 26 of the Act. He submitted that in the light of the provisions of this rule, the contention put forth on behalf of the first,respondent that the same trade mark 'OSHAM' had been registered in respect of items included in other classes would stand in the way of appellant challenging the registration of the trade mark in respect of goods coming under Class 11. Rule 26 of the Trade and Merchandise Marks Rules, 1959 reads as under : "26. Application to be Confined to One Class etc. : (1) Every application for registration of a trade mark shall be in respect of goods comprised in one Class only of the Fourth Schedule. (2) In the case of an application for registration in respect of all the goods included in a class or of a large variety of goods in a class, the Registrar may refuse to accept the application unless he is satisfied that the specification is justified by the use of the mark which the applicant has made or intends to make if and when it is registered. (3) Application for the registration of the same trade mark in different classes shall be treated as separate and distinct applications, and all cases where a trade mark is registered under the same official number for goods in more than one Class, whether on conversion of the specification under Rule 105 or otherwise, the registration in respect of the goods included in each separate class shall be deemed to be a separate registration for all the purposes of Act." 13. Rule 26 of the Act deals with only procedure to be followed by the authority concerned in considering the application for registration. If the first respondent could have the trade mark 'OSHAM' in respect of electrical goods coming under Class 9 and Class 7, I am quite unable to appreciate the submissions made on behalf of the appellant that the respondent cannot have the registration of the trade mark in respect of the goods coming under Class 11. If the first respondent could have the trade mark 'OSHAM' in respect of electrical goods coming under Class 9 and Class 7, I am quite unable to appreciate the submissions made on behalf of the appellant that the respondent cannot have the registration of the trade mark in respect of the goods coming under Class 11. If, according to the appellant, the trade mark 'OSHAM' had obtained such a name as could be said in the business field it could be identified with the appellant and its products, then user of the trade mark which is deceptively similar to that trade mark, would always affect the business of the appellant. It is in this context the Assistant Registrar of Trade Marks dealt with the point under Section 18(1) of the Act said : "Coming to the issue under Section 18(1) of the Act which provide that an applicant for registration of a trade mark must possess the definite claim to the proprietorship of the mark applied for as on the date of application. In the instant case the applicants have applied for registration of their trade mark OSHAM on 19th August, 1995 vide application No. 441901, wherein the applicants have claimed the use of the mark applied for as since August, 1980. In support of the aforesaid user the applicants have filed their evidence by way of an affidavit dated 6th January, 1990 in the name of Shri Shyam Sunder before the Registrar prior to the advertisement of the mark applied for. Along with the aforesaid affidavit the applicants had exhibited copies of some of their bills which are bearing the trade mark OSHAM, hence, the evidence supports the claim of the applicants for commencement of the use of the mark applied for since August, 1980, that being so, the applicants do have their claim to be the proprietor of the mark applied for as on the date of application keeping in view of the aforesaid evidence of user. Thus, the application for registration of the mark applied for is in accordance with the provision of Section 18(1) of the Act." 14. In the light of the facts adverted above, I do not find any error in the view taken by the Assistant Registrar of Trade Marks. The view taken by the Assistant Registrar of Trade Marks is in accordance with law and does not call for any interference. In the light of the facts adverted above, I do not find any error in the view taken by the Assistant Registrar of Trade Marks. The view taken by the Assistant Registrar of Trade Marks is in accordance with law and does not call for any interference. Accordingly, the appeal is dismissed. 15. There shall be no order as to costs.