SEVEN UP CO U.S.A. Versus ABDUL AZIZ- NOOR MUHAMMAD

The respondent in Miscellaneous Appeal No. 113 of 1970 applied on 27-3-1963 to the Registrar of Trade Marks for the registration of the trade mark 7-Up for Pan Masalah, which falls in class 30, and, for convenience, I will refer to this appeal as the Panwalla's appeal. The respondent in Miscellaneous Appeal No. 25 of 1971 likewise applied for the registration of the same mark on 2 3-2-1963 for cotton sewing thread in class 23. The respondent in Miscellaneous Appeal No. 26 of 1971 applied on 21-3-1964 for registration of this mark for its soap, which falls in class 3. Finally, the respondent in Miscellaneous Appeal No. 27 of 1971 applied on 24-8-1962 for the registration of the same mark for its wool, which falls in class 23. These four applications were duly advertised and were opposed by the appellant, which is an American Corporation, and, as its objections in all the four cases have been rejected by the Registrar, it has come in appeals against these four orders.

2. The contention of the appellant before the Registrar, as in this Court, was, that it was one of those vast world-wide American Corporations which manufactured what are generally described in this country as soft drinks; there fore, in 1948, it had obtained registration of the trade mark 7-Up in class 32 for carbonated, non-alcoholic, non-cereal maltless beverages sold as soft drinks and preparations for making such beverages. Ten years later it obtained registration for the trade mark 7-Up in the same class for the goods. "Soft drink beverages and syrups, flavour and extracts for making soft drink beverages, all being goods included in class 32". Finally, in 1966, it obtained registration for the trade mark 7-Up in class 30 for candy and confectionery of all kinds and flavour ice, and for the mark 7-Up in the same class for the same goods. For some peculiar reason, which has not been disclosed, the appellant relied on the trade marks registered in 1966 only in the Panwalla's case. In the other three cases, it only relied on the two trade marks registered in 1948 and in 1958. But in all the cases, it contended before the Registrar that it was a Company with a world reputation, that the soft drinks manufactured by it were so very popular in the country that its trade mark 7-Up had become a household word in the country, and that the mere use of this trade mark by the respondents amounted by itself to an infringe ment of its rights, because the public would think that it had manufactured the goods being sold by the respondent, who were, therefore, not entitled to registration under subsection (1) of section 8 of the Trade Marks Act, 1940 (hereinafter called the said Act). On the other hand, the respondents claimed the right to have their trade marks registered, because the goods for which they sought registration had no similarity whatsoever to the appellant's soft drinks, and this contention was accepted by the Registrar on several grounds. First of all, he rightly held that the rights of the parties had to be determined by evidence of the situation at the date of the applications for registration, and, in this respect, his further finding, which has not been challenged before me, was that the evidence of the sales of the appellant was not sufficient to warrant, or, justify the claims advanced by it that its goods were so well known that its trade marks were house-hold words in the country. The Registrar further held in all the four cases that the goods of the respondents were so very different from the appellant's soft drinks that the public would not be confused into thinking that the goods of the respondents had been made by the appellant. But, the appellant appears to have opposed the applications of the respondents largely on the basis of case-law, and, as many of the rulings, thus relied upon, had been distinguished by Noor-ul Arfin, J., in Karachi Jeep Corporation v. Saber Saleem Textile Mills Ltd. (P L D 1969 Kar. 376) the Registrar followed the judgment of this Court by which he was bound. He, therefore, rejected the appellant's opposition in all the four cases before him. However, in the Panwalla's case, the facts were somewhat different, because the appellant relied on its registered trade marks for candy and confectionery also; therefore he wrote a more detailed order and pointed out that the plea of the appellant was contrary to the practice of the subcontinent. He observed in this connection :

"It will not be out of place to mention that quite a number of cases registered in Pakistan in respect of the identical marks by different proprietors are on record to show that no confusion has been caused, and in the same way, if the mark of the applicant is registered, there will be no possibility of any confusion. The cases are stated as under:-

Regd. Trade Mark Class Description of goods Name of the

Mark Registered Pro

No. prietors.

3020 KEY 4 Kerosene Oil Caltex (Pak.) Ltd.

28424 KEY 34 Safety Match Ibrahim Match

Works.

23309 Passing Show 34 Cigarettes Pakistan Tobacco

Co. Ltd.

29830 Passing Show 25 Hosiery Goods Ludhiana

Hosiery.

16637 Shell 16 Paper and Board Alex, Cowan &

Sons Ltd.

23228 Shell 19 Petroleum Products Burma Shell Oil

Storage and

Dis tributing Co. (Pak.) Ltd.

10936 Parker 34 Cigarettes The Parker Pipe

Co. Ltd. London

(England).

1999 Parker 16 Fountain pen The Parker Pen

Co. Ltd.

After further pointing out that the position was similar in India, the Registrar rejected the appellant's opposition and allowed the respondents' application for registration.

3. The appellant has now come in appeal against the four orders thus passed against it, and, as according to all the learned counsel, the appeals involved the same questions of law and fact, I have heard them together at their request. But as the facts in the Panwalla's appeal are somewhat different, I will refer to them when necessary. And I have also to observe here that, as before the learned Registrar, the appellant based its case principally on case-law. But, as learned counsel also advanced submissions on the proper construction of section 8(1) of the said Act, I will first examine them.

4. Section 8 reads:

"(8) No trade mark nor part of a trade mark shall be registered which consists of, or contains, any scandalous design, or any matter the use of which would-

(a) by reason of its being likely to deceive or to cause confusion or otherwise, be disentitled to protection in a Court of justice; or

(b) be likely to hurt the religious susceptibilities of any class of the citizens of Pakistan; or

(c) be contrary to any law for the time being in force or to morality."

It is nobody's case that clauses (b) or (c) are attracted to these appeals. And, on the other hand, in his well-considered orders, the Registrar has rejected the appellant's plea, that there was a likelihood of deceptionor, confusion between the goods of the appellant and those of the respondents. Now, not only was this finding within the exercise of the Registrar's discretion, but there is also no evidence on which it can be challenged because the appellant only sells soft drinks. Perhaps, therefore, learned counsel for the appellant was driven to an extreme position, and he contended that the impugned orders were illegal, because the respondents were barred by the second part of clause (a) of section 8 from copying the trade marks of the appellant. The only circumstance in support of this submission is that the second part of clause fal, namely, the words "or otherwise be disentitled to protection. . ." are ambiguous in the context of the first part of the clause. -But merely from this, does it follow that the registration of similar or identical marks is always illegal? If Mr. F. W. Vellani's submission be correct, it means that the owner of a trade mark acquires a monopoly for that mark for all classes of goods on the registration of the mark. But if that had been the intention of the Legislature, it would have enacted accordingly. It has not, and, on the other hand, it has. expressly enacted in section 5 that a trade mark "may be registered only in respect of particular goods or classes of goods."

5. But, according to Mr. F. W. Vellani, his submission was supported by the principles of property rights, and he relied, in this connection, on some American decisions. But what are property rights? The answer must depend on the laws of a country rattler than upon general concepts of property rights. Of course, I agree with Mr. F. W. Vellani that a trade mark is a right of property, which may be acquired, or, developed at considerable expense. But what is the nature of that right? It is essentially the right to create a monopoly, which, to the extent to which it is successful, imposes barriers on competition between similar goods, and, as monopolies lead to higher profits, they also lead to a mal-distribution of wealth therefore I see no reason to lean in favour of such a right whatever be the view of foreign Court, and learned counsel raised this plea of property rights, only because he could not bring his case under the said Act.

6. Learned counsel then stated that, as the respondents had not explained why they had copied the appellant's trade mark, their intentions were dishonest, and therefore against the public interest. Now, this plea assumes that the appellant's rights have been infringed, and the plea would have been legitimate, if there had been any similarity whatsoever between the goods of the parties, but there is absolutely no similarity, or, trade connection between the competing goods. However, the plea is supported by a judgment reported in Sunder. Permanand Lalvani and others v. Caltex (India) Ltd. (A I R 1969 Bom, 24), and, although the observations are not clear, perhaps also by the view taken in Messrs Montgomery Flour and General Mills Ltd. v. The Registrar, Trade Marks, Karachi and another (P L D 1973 Kar. 567). But, with the utmost respect. I cannot agree with this view. The Legislature is the final Judge of property rights and of the public interest, and it has, therefore, conferred under the said Act rights on the owners of registered trade marks and also imposed limitations on those rights, and, if the appellant can show that the respondents sire prohibited by the said Act from copying its trade mark, that is the end of the matter, irrespective of the motives of the respondents. But, if the respondents are not prohibited from copying the appellant's trade mark, then they are only exercising their rights under the said Act; therefore there being no question of concurrent user, they do not have to explain why they are asserting their rights, and the question of their motives is irrelevant, because the public interest requires that the Courts should protect the rights conferred by the said Act. Accordingly, the only question is of the rights conferred op the appellant under the said Act, and I would now turn to the provisions of the said Act, on which the learned counsel for the respondents relied.

7. Apart from section 5, to which I referred earlier, section 10 reads as follows:

"10.-(1) Save as provided in subsection (2). no trade mark shall be registered in respect of any goods or description of goods which is identical with a trade mark belonging to a different proprietor and either already on the register or already registered in any (Acceding State or a non-Acceding State) to which section 82-A for the time being applies in respect of the same goods or description of goods or which so nearly resembles such trade mark as to be likely to deceive or cause confusion.

(2) 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 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.

(3) Where separate applications are made by different persons to be registered as proprietors respectively of trade marks which are identical or nearly resemble each other, in respect of the same goods or descrip tion of goods, the Registrar may refuse to register any of them until their rights have been determined by a competent Court." -'he learned counsel for the respondents submitted that this section should be read with section 8. That is correct, and what is significant is that, although Ibis section prohibits the imitation of trade marks, the Legislature has not imposed a total prohibition. That the prohibition is conditional manifest the anxiety of the Legislature not to confer on the owner of a registered trade mark a wider monopoly than is required in the public interest, and thus the section also furnishes a guideline for the exercise of the Registar's discretion under section 8. And precisely because the prohibition on the imitation of a trade mark is limited, this implies that the registration of a trade mark identical, or, similar to one registered earlier can be allowed, if the competing goods do not fall within the same "description of goods; therefore, not merely would the construction sought to be placed on the second part of clause (a) of section 8 by Mr. F. W. Vellani render section 10 redundant, but it would also be inconsistent with the section, because the prohibition con tained in it on the registration of identical, or, similar trade marks is condi tional, and not absolute.

8. The learned counsel for the respondents also referred to Chapter IV of the said Act. and, as it contains the express provisions in the said Act on the effect of the registration of trade marks, their submission was that the ambiguity, if any, in section 8 had to be construed in the light of these provisions. In this connection, the learned counsel rightly placed reliance on section 21, which I would quote :

"21.-(1) Subject to the provisions of sections 22, 25 and 26, the registra tion of a person in the register as proprietor of a trade mark in respect of any goods shall give to that person the exclusive right to the use of the trade mark in relation to those goods and, without prejudice to the generality of the foregoing provision, that right shall be deemed to be infringed by any person who, not being the proprietor of the trade mark or a registered user thereof using by way of the permitted use, uses a mark identical with it or so nearly resembling it as to be likely to deceive or cause confusion, in the course of trade, in relation to any goods in respect of which it is registered, and in such manner as to render the use of the mark likely to be taken either-

(a) as being used as a trade mark; or

(b) to import a reference to some person having the right either as a proprietor or as registered user to use the trade mark or to goods with which such a person as aforesaid is connected in the course of trade."

Subsection (2) of the section is not relevant. As the section expressly deals with the rights conferred by the registration of a trade mark, and, as it clarifies that the rights acquired on the registration of a trade mark are infringed only when a person uses an identical, or, similar trade mark "likely to deceive or cause confusion in the course of trade", it is clear that the prohibition on using an identical, or, similar trade mark is not absolute; therefore this is another express provision inconsistent with Mr. F. W. Vellani's' submission, that, on registration, the appellant had acquired an absolute monopoly for its registered trade marks.

9. The learned counsel for the respondents further relied on sec tions 22, 25 and 26, which are also to be found in Chapter IV. All these sections limit the rights acquired on the registration of a trade mark and lend some support to the case of the respondents. However, much more important is section 38, which deals with defensive registration. The learned: counsel for the respondents not merely relied on this provision, but they also challenged the bona fides of the appellant, and submitted that it was prosecuting these appeals in order to obtain, through the back door, the benefits of the section. And, on the other hand, as I pointed out earlier, Mr. F. W. Vellani laid great stress on the fact that the appellant's trade marks were invented words, which had become so popular that they were household words in the country. But section 38 expressly deals with trade marks, which are invented words and are extremely well known; therefore I was surprised that Mr. F. W. Vellani was silent about this section. It obviously needs examination.

10. Section 38 reads:

38.-(1) Where a trade, mark consisting of any invented word has become so well known as respects any goods to relation to which it is registered and has been used, that the use thereof in relation to other goods would be likely to be taken as indicating a connection in the course of trade between those goods and a person entitled to use the trade mark in relation to the first mentioned goods, then, notwith standing that the proprietor registered in respect of the first mentioned. goods does not use or propose to use the trade mark in relation to, those other goods and notwithstanding anything in section 37, the trade mark may on application in the prescribed manner by such proprietor be registered in his name in respect of those other goods as a defensive trade mark and, while so registered, shall not be liable to be taken off the register in respect of those goods under the said section.

(2) The registered proprietor of a trade mark may apply for the registra tion thereof in respect of any goods as a defensive trade mark not withstanding that it is already registered in his name in respect of those goods otherwise than as a defensive trade mark, or may apply for the registration thereof in respect of any goods otherwise than as a defensive trade mark notwithstanding that it is already registered in his, name in respect of those goods as a defensive trade mark, in lieu in each case of the existing registration.

(3) A trade mark registered as a defensive trade mark and that trade mark as otherwise registered in the name of the same proprietor shall, notwithstanding that the respective registrations are in respect of different goods, he deemed to be, and shall be registered as, associated trade marks.

(4) on application in the prescribed manner by any person aggrieved to a High Court or to the Registrar, the registration of a trade mark as a defensive trade mark may be cancelled on the ground that the requirements of subsection (1) are no longer satisfied in respect of any goods in relation to which the trade mark is registered in the name of the same proprietor otherwise than as a defensive trade mark, or may be cancelled as respects any goods in relation to which it is registered ac a defensive trade mark on the ground that there is no longer any likelihood that the use of the trade mark in relation to those goods would be taken as giving the indication mentioned in subsection (1).

(5) .

(6) .

The section enables the owner of a registered trade mark to obtain protection for his trade mark in respect of goods other than those for which it is registered, only if he can discharge the burden of proving that the use of his mark in relation to such other goods "would be likely to betaken as indicating a connection in the course of trade between such other goods and the goods for which his trade mark had been registered". Now, if as sub mitted by Mr. F. W. Vellani, the registration of a trade mark automatically entitles its owner to prevent all other persons from using that trade mark for any other goods whatever, then this section would become redundant, and, when there is such an express provision, redundancy cannot be attributed to the Legislature. Additionally, not merely is defensive registration granted o n1 terms, but it can also be cancelled under subsection (4) and, in my humble opinion, the fact that it can be so cancelled is completely inconsistent with the strained construction sought to be put on the second part of clause (a) of section 8, by Mr. F. W. Vellani.

11. I, therefore, pointed out to learned counsel that his arguments on the scope of section 8 were completely inconsistent with the express provisions in the said Act about the effect of the registration of a trade mark. Learned counsel's only reply was that his submissions were supported by case-law. I will presently examine some of the cases cited, but I was disturbed by another circumstance. This was that, on the view which I was taking, the second part of clause (a) of section 8, which is so ambiguous, would become redundant. But, if I were to accept the meaning sought to be placed on it by Mr. F. W. Vellani, it would render redundant other provisions in the said Act, and as it would also be inconsistent with these other express provisions on the effect of registration; T would rather treat the second part of clause (a) of section 8 as redundant. I am not alone in thinking so. Kerly in his commentary on the Law of Trade Marks (Tenth Edition) observes a page 193 (10-29), with reference to the corresponding provisions of the English Trade Marks Act. "The words "or otherwise" in this section, having regard to the last part of it, seem to be redundant." In my humble opinion, this statement of the law is correct.

12. Before turning to the case-law cited, in fairness to learned counsel, I would point out that he laid great stress on the expenditure incurred by the appellant in advertising its trade marks. But how is that relevant to these appeals? The respondents are dealing in cotton, wool, soap and Pan Masalsh, and, if the appellant's expenditure on developing its trade marks has been well spent, it would, if I may say so, create a barrier in the public against competing products, like Bubble Up, Coca Cola and even local products, like Rogers, or products like Sharbat and Squashes. But how would this be relevant to these appeals? This very point was considered In the matter of an application by Ferodo Ltd. 1945 (62 R P C 111) by Evershed, J., in a case under section 27(1) of the English Trade Marks Act. which corresponds to section 38(1) of the said Act, and I may pause to point out here that section 27 was inserted in the English Trade Marks Act as late as 1938. Now, the appellant in the case cited was the registered owner of the trade mark "Ferodo" for brake and clutch linings, etc. and was continuously expanding its products. Like the appellant before me, it claimed that its trade mark had become a household word, and that its sales had grown enormously; therefore it sought defensive registration in other classes for products like tobacco and pharmaceutical products. Thus, the facts are similar to those in the instant case, but Evershed, J., rejected the appellant's claim for defensive registration and observed: "In this connection reference was made in the course of the arguments to an observation of a former Registrar of Trade Marks to the effect that some trade masks ("Bovril" and "Kodak" being given as examples) are so well known in our particular field that their use by any person other than the proprietor in respect of any goods whatsoever would prima facie suggest an association of such goods with the proprietor of the marks. For myself I am not persuaded of the soundness of this proposition. Words do not become known as words without any significance or without appreciation of the things which they indicate. And so far as trade marks are concerned it may well be that the better known the C words become, the more closely are they associated in the public mind with the class of articles to which they are in the course of trade applied. I do not intend to pass judgment on any case not now before the Court, but if, for example, "Bovril" is well known to the great majority of the population of this island, and if it is so known as indicating a particular kind of foodstuff then, on that very ground, the application of the word to, say, a typewriting machine might well be held not to be in the least degree likely to lead to the indication referred to in the subsection. To take another illustration a word which does not happen to be an invented word (for the principle seems to me to be the same); the events of the past five and a half years have for the whole British people save to very small infants and a few idiots, made the word "Spitfire" familiar in their mouths as a household word, but familiar as a description of an aero plane. If a manufacturer of toothpaste were to describe one of his products as Spitfire toothpaste I should find it difficult to suppose that to any purchaser of the toothpaste the name would indicate a connection in the course of trade between the toothpaste and the aircraft manufacturers". I agree with this lucid statement of the law, and, in my humble opinion, the observations about an imitation of the word "Spitfire" are fully applicable to these appeals.

13. Mr. F. W. Vellani, however, thought that cotton, or, wool bearing the mark 7-Up would be assumed to have been made by the appellant, because the appellant was a world-wide corporation with vast resources. No doubt, learned counsel is aware of his client's financial resources, but that is neither a matter of which judicial notice can be taken, nor is there a shred of evidence to show that the common man in the country, who buys the appellant's products, has any knowledge of its resources abroad. Mr. F. W. Vellani then attempted to support his submission by reference to the pattern of industrial development country. He said that textile magnates, like the Adamjees and the Dawoods, had interests in industries, like paper and tea and paper and rayon; therefore learned counsel thought that this was a circumstance which supported his submission about the confusion that would be caused if the respondents were allowed to copy the appellant's trade marks. As I do not wish to comment on persons who are not parties to these appeals, I would only stress here that, even according to Mr. F. W. Vellani, these textile magnates had interests only in a couple of other industries, like paper and rayon and tea. Now there is some connection between, for example, the textile industry and the rayon industry, or the paper industry, but there is none between the soft drinks industry and cotton or wool or soap or Pan Masalah. And further, if a person is intelligent enough to know that our textile magnates have interests in other industries. such a person would know that the appellant, being a foreign corporation, would not have been permitted, at least in the last thirty years, to enter into industries, like the textile industry in which there was no shortage of local skill, or, capital. I am, therefore, not impressed by the submission.

14. Learned counsel then stressed the fact that the appellant's trade mark wag also its name. That is true, but the name is a combination of two ordinary words of the English language. Whilst this combination is, as submitted, catchy, I see no originality in it. Further, this very question was examined by Lord Halsbury, L. C. in James Crossley Eng. & Walliam George Dunn (15 A C 252). The appellant there had coined the words "Fruit Salt" and proved that they were associated with his trade mark; therefore he claimed that these words could not be copied by the respondent. Lord Halshury observed at page 255: "I accept the evidence as true, that "Fruit Salt" is now only applied to Eno's Fruit Salt, since it is clear that until Mr. Dunn sought to use the phrase, the words "Fruit Salt" only meant, in shops where such articles were sold, the "Fruit Salt, Fruit Saline, or Fruit Powder," which Mr. Eno sold; but it does not therefore follow that two ordinary words in the English language, though I will assume now in their combination here, become the property of Mr. Eno". In my humble opinion, these observations state the correct law, and I would not follow the view to the contrary by the Bombay High Court in the Caltex case.

15. I now turn to the case-law cited, but I would begin with the judgment of this Court in Kaiser Jeep Corporation V. Saber Saleem Textile Mills Ltd. (P L D 1969 Kar. 376), on the basis of which, the Registrar had dismissed the objections of the appellant. The facts in this case were that the appellant had been since 1957 the registered owner of a trade mark consisting of the word "Jeep" with the device of a -vehicle in class 12 (automobiles and vehicles). The respondent applied four years later for the registration of a mark consisting of the words "Jeep Brand" with the device of a jeep. The similarity between the two marks was very obvious, but the respondent sought registration of its mark for thread and yarn, and, as in the instant case, the application was allowed by the Registrar on the ground that the competing goods were so different that there was no likelihood of confusion between them. The appellant challenged this order in an appeal and relied mostly on the very cases to which I was referred by Mr. F. W. Vellani, but its appeal was dismissed on the short ground that there was no trade connection between the goods of the appellant and of the respondent. Noor-ul-Arfin, J. (as he then was) observed in paragraph 4 of his judgment: "The motor-cars manufac tured by the appellants, and the respondents' thread and yarn, are goods so different and dissimilar that it is impossible to take the view that any kind of connection could exist between these goods. The goods of the appellants and the respondents cannot form part of each other. The goods are not put to the same use, nor are they commonly dealt with in the same course of business. These goods are not even sold in the same kind of shops. The goods and their uses are so different that they cannot conceivably be attributed to the same source. In my view, therefore, there is no likelihood of any deception or confusion being caused by the respondents' use of the word trade mark "Jeep" with the device of a motor vehicle for thread and yarn, as these goods cannot in any way be connected with the appellants".

Obviously, as submitted by Mr. F. W. Vellani, the facts in this case are not identical to those in these appeals, but that criticism, in turn, applies to all the cases cited by him for the very obvious reason that the question, what is a trade connection, must depend on the facts of the case and the evidence produced in it. Therefore, citations on the question of what is a trade connection are of limited value. - With this qualification, I would, say that, by parity of reasoning, the case supports the view of the learned Registrar. Therefore, Mr. F. W. Vellani submitted that this view had been dissented from by the late Chief Justice in Messrs Montgomery Flour & General Mills Ltd. v. The Registrar, Trade Marks, Karachi and another and I will examine this case.

16. It is of interest to note that the respondent in this case, the 7-Up Co., is the appellant before me in these four appeals, and the judgment was in an appeal against the Registrar's decision upholding the 7-Up Co's. objections to the registration of a trade mark similar to its own trade mark. The 7-Up Co. in the case cited, had relied on its registered trade marks both for soft drinks and for candies, while the respondent had applied for the registration of a trade mark for candies which consisted of the words "Montgomery 7-Up Candies". Obviously, therefore, the facts in this case are similar to those in the Panwalla's appeal, but, as observed in the judgment, in resisting the appeal, the respondent appears to have relied more on the use of its trade mark for its soft drinks than on its registered trade mark for candies, because it had not been using that trade mark, despite its registration. The appeal was dismissed, and, in dismissing it, Tufail Ali A. Rehman, C. J. observed in paragraph 39:

"(39) Upon a consideration of the various statutory provisions and the circumstances of the case I have come to the conclusion that the goods of the contending parties are of the same description inasmuch as they are normally sold through the same trade channels and that, while both are items for human consumption and edible, neither is a food in the sense that either would be used for the purpose merely of satisfying hunger. Each is used in the form of a refreshment, a substance from which some enjoyment of taste and refreshment is to be obtained rather than the satisfaction of a physical appetite. In that view of the matter section 10(1) would clearly debar the appellants from registra tion of the trade mark. It is to be observed that even in section 10 the likelihood of deception or confusion is an element."

Mr. F. W. Vellani relied on these observations, because, as submitted by him, the appeal could have been dismissed on the narrower ground that no case had been made out for interfering with the exercise of the Registrar's discretion. And I would add that it could also have been dismissed on the ground that there was a trade connection between sweet refreshments, whether liquid or solid, but instead the late Chief Justice held that there was a trade connection between refreshments, whether liquid or solid. That is certainly a wide view of the concept of a trade connection.

17. Mr. F. W. Vellani also relied on the observations in paragraphs 41 and 42 of the judgment. There, the late Chief Justice pointed out that the respondent's trade mark was very well known, and be, therefore, held that the appellant's partial imitation of that trade mark amounted to deception; accordingly be rejected as false the appellant's plea of a concurrent and honest user within the meaning of section 10(2) of the said Act.

Mr. F. W. Vellani contended that the view, thus taken, was an approval of his submission that a registered trade mark could not be copied by anyone else. The other possibility is that the finding against the appellant was the corollary of the earlier finding that there was a trade connection between the competing goods. Mr. F. W. Vellani, however, submitted that this latter possibility was excluded, because Tufail Ali A. Rahman, C. J. had approved of Lalvani's case, in which the Bombay High Court had treated as irrelevant the very concept of a trade connection. I would, therefore, examine this Bombay case.

18. The facts in it were that the appellants had applied for the registra tion of the trade mark "Caltex" for watches. The respondent opposed this application on the ground that it had been, for many years, the registered owner of the very same mark. But the Registrar rejected its opposition, because its trade mark was for products, like petroleum, kerosene, lubricants, etc.; therefore, as he was of the view that there was no trade connection whatever between the competing goods, he allowed the application of the appellants. The respondent's appeal against this order was allowed by the High Court, but this judgment is not available. The appellants then went in appeal, but their appeal was dismissed by a Division Bench of the Bombay High Court. This judgment is reported as Sundar Parmanand Lalvani and others v. Caltex (India) Ltd. Mr. F. W. Vellani produced before me the judgment of the Division Bench, and I find that, in dismissing the appeal, the learned Judges observed: "Our trade marks law is based on the English trade marks law and the English Acts". They were accordingly referred by both the parties to the English case-law on the subject, according to which, the registration of a trade mark identical, or; similar to one already registered was not allowed whenever, "there was a trade connection between the competing goods". The learned Judges then stated in para. 49 of the judgment: "In this case .the goods are totally different. There is no trade -connection between them. There is no connection in the course of trade nor any trade channel". In view of this finding, Mr. F. W. Vellani placed very great stress on the further observations, which read:

"It cannot go without notice that the goods in respect of which the applicant in fact used the mark before he applied for registration were very cheap watches. The goods of the opponents are used by persons all over India, in cities and in villages, in different walks of life, rich or poor, literate or illiterate. The goods of the applicant are different in nature. But they are watches. They can be cheap watches. The potential market for them is, therefore, similar to that of the existing market of the opponents, in the sense that the goods of both the parties are not special goods. They are goods which would be pur chased by the Common man."

These observations are inconsistent with the view of Arfin, J., in the Kaiser Jeep Corporation's case, but, as Tufail Ali A. Rahman, C. J approved of them, Mr. F. W. Vellani submitted that there was a cleavage of opinion in this Court, and his further submission was that the view of Tufail Ali A. Rahman, C. J., was to be preferred, even though it was obiter. I am not surprised that learned counsel thus invited me to approve of the Bombay case, because it supports his submissions to the hilt, and the question is whether it should be followed.

19. Now, as I showed, the learned Judges of the Bombay High Court were themselves of the view that the Indian Law was the same as tile English Law, yet they rejected the view taken by the English Courts for a hundred years or more. They held that there was no trade connection between the goods of the respondent and of the appellant, yet they dismissed the appellant's application for registration, whilst, according to all the English cases, registration could have been refused only on the finding, to use the expression of the learned Judges, that "there was a trade connection between the competing goods." That is why Evershed, J., dismissed Ferodo'& application, and observed that, even though the name "Spitfire" was a house hold word in English, no one would think that toothpaste sold under the name "Spitfire" had been manufactured by the manufacturers of the aero planes sold under the mark "Spitfire". Similarly, in Jellinek's case ((1946) 63 R P C 59) both Evershed, J., and Romer, J., permitted the registration of a trade mark identical to that of the respondent on the ground that there was no trader connection between shoes and shoe polish: Turning now to a few of the older cases, in Lake & Llliot's Application ((1903) 20 R P C 605) Kekewich, J., held that the owner of a trade mark registered for foodstuffs could not oppose the registration of an identical trade mark for carriages, even though such carriages might be used for delivering the foodstuffs of the respondent, because there was no trade connection between carriages and foodstuffs, and in so holding, the learned Judge followed the judgment of the House of Lords in the Eno's case, which I will presently examine. Finally, the Privy Council also took the same view in Somerville v. Schembri (12 A C 453), and these are only a few of the cases on the question under consideration in the last hundred years or so.

20. Somerville's case is the only judgment of the Privy Council, which I could find on the question, and the facts in it were that the respondent was sued for using the trade mark "Kaisar-i-Hind" for its cigarettes. As the appellant proved that it had been using the same name for its own cigarettes for a period much longer than the respondent, the Judicial Committee held that the respondent could not copy the appellant's mark. Lord Walson's observations at page 457 are relevant to Mr. F. W. Vellani's submission and read :

"Had it not been for the views expressed by the Court of appeal in giving judgment, it would hardly have been necessary for their Lord ships to observe that the acquisition of an exclusive right to a mark or name in connection with a particular article of commerce cannot. entitle the owner of that right to prohibit the use by others of such mark or name in connection with goods of a totally different character and that such use by others can as little interfere with his acquisition of the right."

Unfortunately, the attention of the learned Judges of the Bombay High Court was not drawn to these observations by Lord Watson, and, as the principle laid down by Lord Watson is contrary to the view taken in the Bombay case, Mr. F. W. Vellani submitted that Lord Watson's observations were obiter dicta only. That is correct, but I would prefer the obiter of the privy council, the more so, as I see no reason to dissent from what was understood to be the settled law. What then were the reasons for the Bombay view? According to Mr. F. W. Vellani, the first and the main reason which was approved by Tufail Ali, C. J. in Montgomery's case was stated by the learned Judges in paragraph 49 of their judgment; therefore I quoted that paragraph earlier, and, according to it, the reason given by the learned Judges for their views was that, as the goods of both parties were cheap goods "the potential market for them is, therefore, similar . . . . . . ." With respect, on this reasoning, a trade mark will require similar protection when the competing goods are expensive, but then for what goods would it not be required? Mr. F. W. Vellani's answer to my enquiry was that the judgment supported his submission that the owner of a trade mark acquired, on the registration of that mark, a right to prevent other persons from using it for all classes of goods. As I explained earlier, the judgment supports learned counsel's submission, but it is contrary to the provisions of the said Act.

21. Next, according to learned counsel, the judgment also supported his submission about protecting the rights of property in a trade mark, and. from the passages to which I was referred, it does seem that the learned Judges were preoccupied by this consideration. However, the question is not of protecting rights of property in a trade mark, but of protecting the rights conferred by the said Act, and, except for section 10, the attention of the learned Judges was not drawn to the other provisions in the said Act, to which the learned counsel for the respondents referred me. This was unfortunate, because these other provisions limit the rights conferred on the owner of a trade mark, and therefore also limit the Registrar's discretion under section 8. Assuming then that the Indian legislation is in pari materia with the said Act, I cannot agree with the view taken in the Bombay case. And I would respectfully follow the view of Noor-ul-Arfin, J. (as he then was), in the Kaiser Jeep Corporation's case.

22. I now turn to the English cases on which Mr. F. W. Vellani relied. According to all the books, the leading case on the subject of deception between trade marks is James Crossley Eng. & Walllam George Dunn, and it turned on the construction of section 73 of the English Patents, Designs and Trade Marks Act, 1883. The relevant part of this section was identical to the second part of clause (a) of our section 8, except that it did not contain the words "or cause confusion"; therefore the registration of a trade mark could be opposed only on the ground of deception. Now, the facts in the Eno's case were that the appellant Eno was the registered owner of a trade mark, which included the words "Fruit Salt" for "proprietary medicines." A few years later, the respondent sought registration of the trade mark "Dunn's Fruit Salt Making Powder". The appellant opposed the respondent's registration, because its own trade mark included the words "Fruit Salt". On account of the respondent's opposition, the appellant withdrew its registration and opposed the respondent's claim only under the general law. The Controller dismissed the respondent's application. His order was upheld by Kay, 1., as the respondent was successful in the Court of Appeal, Eno's went to the House of Lords. I referred earlier to the observations of Lord Halsbury with which I respectfully agree. Lord Halsbury also pointed out that the labels of the appellant and of the respon dent were completely different. Accordingly, he was of the view that the appeal was fit only to be dismissed. Lord Morris concurred with this view. As he examined in greater detail the appellant's contention that its interest would be prejudiced if anybody was allowed to copy the words "Fruit Salt" for which it claimed a monopoly, I would quote here a passage from his speech. After pointing out that the appellant did not use any salts derived from fruit in its product, Lord Morris observed :

"But, in the view I entertain, that argument would lead to this result, that Eno, because he has deceived the public into the belief that his powder for making a drink contained salt derived from fruit can now prevent Dunn from truly stating that his powder for making bread contained it, because forsooth, the catch words "Fruit Salt" used to describe the ingredient in both compositions, may deceive a purchaser of these most dissimilar and different articles of consumption and use.

To avoid so untenable a position, the appellant resorts to what appears to me an extraordinary contention, namely, that his powder might be used for baking as a baking powder also. and that consequently his trade for baking purposes might be interfered with, and that persons who wanted "Eno's Fruit Salt Powder" to bake might be deceived into buying Dunn's ditto. This argument wants a foundation in fact. It is true an archdeacon at Pieter-maritzburg, when unable to obtain baking powder, states he used Eno's Fruit Salt for baking in 1877 and 1880, and apprised Eno of the fact; and the appellant's accountant states that his wife bad used it for four years past as a baking powder, and two other witnesses deposed to the same, on experiments made, I recollect after this action bad commenced as no date is given, and the experiments are stated to have been lately made; the same evidence could be given of the possible use of a Seidlitz powder.

Can it be gravely asserted that such a use of the aperient drinking powder could ever be an ordinary one, or that it was ever contemplated by and or that he could or would adopt such a trade of his powder? He has never advertised or purported to sell it to bake bread. In my opinion there is nothing in the use, by Dunn, of the word "Fruit Salt" to deceive purchasers; and in deciding in favour of the appellant we should practically give him the exclusive right to the use of the words "Fruit Salt", though admittedly incapable of being registered by him as a trade mark, to the exclusive use of which words he is not entitled."

Although, Lord Halsbury and Lord Morris held that the appeal should be ,.dismissed, the appeal was allowed by a majority of one as Lords Watson, -Herschell and Macnaghten held that the appeal should be allowed.

23. The true ratio of the majority view supports the case of the appellant !n the instant cases to the extent only that it is based on a wide view of a trade connection, and I would also add that the observations of Lord Macnaghten are very wide. However, in appreciating them, it is necessary to bear in mind that the House of Lords by a majority declined to interfere with ,the Comptroller's discretion, and Lords Watson and Herschell made it very clear that they based their view on, if I may quote Lord Watson, "a supposed connection between the two articles in the minds of many persons, who would naturally assume that the baking powder had been manufactured with the appellant's Fruit Salt, and purchase it in that belief; so that a batch of badly made baking powder might seriously injure the credit of (Eno's)". Lord Herschel] made it even more clear that he was basing his views on the evidence produced. The noble Lord observed : "I may say, at once, that in my opinion the appellant has no exclusive property in the words "Fruit Salt" and, if it were proposed so to employ them, that no reasonable person could suppose that they had reference to the appellant's preparation, such a use would be perfectly unobjectionable. For, example, I cannot conceive anyone imagining that a "Fruit Salt umbrella" was in any way connected with the article manufactured by Mr. Eno. And numberless similar illustrations might be given. But I am unable to arrive at the conclusion that Fruit Salt and baking powder are of so essentially different a character that the one could not be supposed to enter into the composition of the other. The evidence appears to me to be cogent the other way . . . . . : ' The noble Lord then discussed the evidence. Additionally, the question in the case was of interfer ing with the exercise of discretion by the Comptroller against the respondent, and Lord Herscbell observed with reference to sections 72 and 73 of the English Patents, Designs and Trade Marks Act, 1883. "Those sections prohibit the registration of a trade mark in certain specified cases, but there is no duty cast upon the Comptroller of registering every other trade mark that may be applied for. On the contrary, whilst he is in certain cases prohibited from registering, a discretion, whether to register or not, appears to me to be in all other cases plainly conferred. Of course this discretion must be reasonably and not capriciously exercised; but it is, in my opinion, a reasonable exercise of it to refuse registration when it is not clear that deception might not result from it". This speech and that of Lord Morris state the majority and the minority views respectively, and, as I prefer the minority view, I would now give my reasons for preferring this view.

24. Thus, Lord Herschell gave two reasons for his view, the second being that the respondent's application for registration had to be rejected, as he had failed to prove that the use of his trade mark would not deceive the public. Now, as under section 8 of the said Act, section 73 of the English Act placed the burden of proof on the person seeking registration of a trade mark, but, except in cases, where the facts speak for themselves, the evidence of the likelihood of deception, or, of confusion is within the exclusive knowledge of the person opposing registration, and if he does not produce such evidence, an adverse inference has to be drawn against him; therefore generally, but not necessarily, the question of the burden of proof loses its importance in a case after evidence has been recorded. Secondly, what is the precise nature of the burden of proof on a person seeking registration under section 8? If the trade mark is sought to be registered for the class of goods for which an identical, or, similar trade mark has been registered, then the burden of justifying registration is obviously on the person seeking registration. But would the burden of proof still be on the person seeking registration, if registration is sought for a class of goods different from that for which the opponent's trade mark has been registered? On the one hand, section 8 of the said Act does not draw any distinction between classes of goods, but, on the other hand, a statute has to be read as a whole, and section 5 permits the registration of a trade mark only for a class, or, classes of goods; therefore a point, which requires examination, is, whether the burden of proof under the section would remain on the person seeking registration, even when the registration of the trade mark is sought for a class of goods different, or very different, from the class of goods for which the opponent's trade mark has been registered. It is necessary to emphasise this point, because it could not arise for determination in the End's case, as the appellant had withdrawn its registration under the English Patents, Designs and Trade Marks Act. But I would also refrain from examining this point because no arguments were advanced. However, it will require ,examination sooner or later.

25. Then as to the first ground for Lord Hersehell's view, that the trade mark of the respondent was likely to deceive the public, I would first recall here the observation of Lord Morris that, if the appeal was allowed,. "we should practically give the appellant the exclusive right to the use of the words "Fruit Salt" . . . . . to the exclusive use of which words he is not entitled". Now, Lord Herschell said the same thing when he observed that the appellant could not have opposed the registration of his trade mark for umbrellas, yet the noble Lords reached the opposite conclusions on the same evidence, and it is clear from the speech of Lord Morris that the minority view was based on what I would describe as a strict appraisal of the evidence. But, Lord Morris further pointed out that a powder, which was a laxative, was so completely different from a cooking powder that there was no possibility of deception between these two powders. In other words,. the two powders did not belong to the same description of goods within the meaning of section 10 of the said Act, or, to put the same thing in different words, the finding was that there was no trade connection between the powders of the appellant and of the respondent. Thus, the main cleavage of opinion was on the question of what was a trade connection, and, if we were to give a trade connection a very wide meaning, we would be nullifying, provisions, like sections 21 and 38 of the said Act. But, I found, on an examination of the statute construed in the Eno's case that statute did not contain any such provisions. This means, in the first place, that the judg ment is distinguishable on the ground that the statute construed was not in. pari materia with the said Act. Secondly, this, also means that the statute construed did not contain any guidelines for determining what was a trade connection. It is said that a trade channel is relevant to the concept of a trade connection. That is correct, except that this is only one of the several circumstances relevant to the question, and, as the statute construed did not contain any guidelines for determining a trade connection, no doubt the eminent Judges, who decided the case, must have gone by principles of equity and justice which, in the context of a commercial rivalry, could not but have reference to concepts of property rights at the relevant time. I say "concepts of property rights", because, if the rights had been defined, there would have been no problem, and I say "at the relevant time", because, for example, the contempt of property rights in Article 24 of our Constitution is very different from the concept of property rights in the American Constitution, and, I would add, it is also different from the concept of property rights in our earlier Constitutions, whilst the concept of property rights in those earlier Constitutions was different from what it was in the 19th century. But the Eno's case was decided in 1890. That was the hey-day of laissez faire capitalism. Property rights were sacrosanct; their protection was considered a paramount public interest, and, as a trade mark is a valuable right of property, in my humble opinion, the majority view in the Eno's case reflects the concepts of property rights prevailing in the 19th century.

26. English Courts are bound by this view, which has given a tilt, if not a bias, in favour of monopolies, which is not really in consonance with the objects of the said Act. I am not alone in my views. Early on the very first page of his commentary on trade marks observes : "The statutory rights conferred by registration are now more extensive than is necessary for the purpose of preventing deception, and confer something in the nature of a limited monopoly". As this is hardly a consummation devoutly to be wished for, I have given anxious thought to the question, whether we, in this Court, should follow the majority view in the Eno's case, as the judgment is only of' persuasive value. In my opinion, not only is the majority view not in consonance with our Constitution, because it has fostered the growth of mono polies, but it is also not in consonance with provisions, such as sections 21 .and 38 of the said Act, which, as I explained earlier, were enacted in order to make a departure from the Common Law, and in order to curb the excessive rights conferred on the owners of trade marks under the Common Law. Accordingly, in my humble opinion, the minority view in the Eno's case should be followed, but once again, in reaching this conclusion, I am dissenting from the view taken by Tufail .Alt A. Rahman, C. J., in Montgomery Flour & General Mill's case. However, his Lordship's attention was not drawn to the .differences between the English Patents, Designs and Trade Marks Act, 1883, and the said Act.

27. I would now revert to the English cases cited by Mr. F. W. Vellani, and in The Eastman Photographic Materials Company, Ltd., and another v. The John Griffiths Cycle Corporation, Ltd. and the Kodak Cycle Company, Ltd. (15 R P C 105), the plaintiff proved that it had acquired the right to the use of the name `Kodaks' for photographic equipments; therefore it was successful in obtain ing an injunction to restrain the defendant from advertising its bicycles as "Cycle Kodaks", or, "Bicycle Kodaks". According to Mr. F. W. Vellani, this decision was in line with the Bombay judgment in the Caltex case, because there was no trade connection between a bicycle and photographic equipment, and so, according to learned counsel, the true ratio of the case supported his submission that the owner of a registered trade mark acquired on the registration of his mark an absolute monopoly to it for all classes of goods. I have always taken the ratio of a case to mean the reasons given by the Court for its decision; so I would quote the relevant passage from the judgment of Romer, J., which' reads: "It appears that the "Kodak Cameras" are especially available for use on cycles, and that they are much used by cyclists, and the plaintiff-Company has done a large trade on these "Kodaks" for the purpose of cycles. It has made certain special forms of "Kodaks" so as to especially adapt them for use on cycles. It has advertised for some time these special "Kodaks" as "Cycle Kodaks" or "Bicycle Kodaks", and it also has a considerable trade in bicycle accessories so far as relates to the adaptation of the bicycle for the photographic purposes. At one recent large cycle show the plaintiff company had a stall, and the evidence shows that between the two trades, the cycle trade and the camera trade, there is an intimate connection. Many shops sell and deal in both cycles and photographic cameras and materials. To a certain extent the plaintiff company is identified with the name "Kodak" as connected with cycles . . . ." I regret to say that these observations are totally inconsistent with Mr. F. W. Vellani's submission on the ratio of the case, and similarly they are completely inconsistent with the view taken in the Bombay case. However, as submitted by Mr. F. W. Vellani. it is difficult to envisage a connection between photographic equipment and bicycles, but, as the view of Romer, J., was based on the majority view in the Eno's case, learned counsel's criticism, that there can be no trade connection between photographic equipment and bicycles, only shows that the minority view in the Eno's case is to be preferred.

28. Mr. F. W. Vellani then referred me to the judgment of the House of Lords in Dunlop Pheunatic Tyre Company Ltd. v. Dunlop Motor Company Ltd. (24 R P C 572). The appellant in this case had challenged the use of the name "'Dunlop" by the respondent Company, and though it was successful in the trial Court, one of the two grounds, on which the House of Lords had rejected the appellant's claim, was that the name "Dunlop" was the name of the: persons who had floated the respondent-Company. Now, from this learned counsel invited me to hold that the respondents in the appeals before me were: not entitled to copy the name of the appellant, because that name was not the name of the respondents. I find nothing whatever in the judgment to support the submission advanced, for the simple reason that their Lordships were only examining a claim by a person to use his own name, and because this claim was upheld, it cannot possibly lead to the conclusion that the appeal would have been allowed if the respondent-Company had not been able to explain the use by it of the name "Dunlop". Further, on a closer examinations of the judgment, it seems to me that it is fatal to the case of the appellant in these appeals, because it is based on what I would describe as a strict view of the evidence about deception produced by the appellant. I would, there fore, explain here that the appellant had proved that it had been selling tyres for many years under the name "Dunlop", and that the public associated the appellant's tyres with this name "Dunlop". Next, as to the respondent, although it was entitled under its memorandum to manufacture motor cars, the appellant proved that the respondent was merely a dealer in motor parts and spare parts, including tyres, in which it had a large business. In these circumstances, without alleging male fides, the appellant instituted proceedings, to restrain the respondent from using the word "Dunlop" in its name. As the respondent admittedly did a substantial business in tyres, the Lord Ordinary (the trial Court) granted an injunction to restrain the respondent from using the word "Dunlop" in its name on the ground that the adoption of this name "is calculated to deceive the public into purchasing the respondent's goods in the belief that such goods era the goods of (the appellant) and into con founding the respondent's business with that of (the appellant)". The respondent, therefore, went in appeal against this judgment, and the appeal was allowed on two grounds. The first was that the name "Dunlop" was the name of the founders of the respondent-Company therefore the Company was entitled to use this name. The second ground was that there was no evidence of deception, nor any possibility of confounding the respondent's business with that of the appellant: As its claim was thus dismissed, the appellant went in appeal to the House of Lords, but the House of Lords concurred with the judgment under appeal, and, as the main speech was by Lord James, I would quote here the passage in which Lord James dealt with the appellant's claim that the use of the name "Dunlop" by the respondent was likely to deceive or confound the public into thinking that the respondent was selling the appellant's tyres. The noble Lord observed at page 581: "Then, secondly, who will be deceived by the name used by the respondents? It appears to be admitted that an ordinary business person would not be misled, but it is alleged the unwary would. Well, of course, there are unwary people in this world, but I think that a man who employs his own name in carrying.. on his business has the right to regard the people whom he may attract as being capable of exercising and being in the habit of exercising thought". ,Thus, the judgment lays down two principles. The first is about the right of a person to use his own name and is not relevant in these appeals. The second is that a person cannot be restrained from using his name merely because unwary people might be confused about the origin of the competing products. This salutory principle is equally applicable to disputes about regis tered trade marks and is, for example, fatal to the view taken in the Bombay case, because only the extremely unwary if not the absolutely stupid, could be deceived, or, confused when the competing goods were watches and products, like kerosene oil. Hence my observation that the judgment is fatal' to Mr. F. W. Vellani's submissions, and I would further point out that the' principle for the strict appraisal of evidence, which was thus laid down by the House of Lords, would support the dissenting speech of Lord Morris in the Eno's case.

29. Mr. F. W. Vellani then referred me to the case known as Edward" Hack's case ((1941) 58 R P C 91). There, the applicant was restrained from using the trade mark "Black Magic" for laxatives, as the same mark had been registered by the respondent for one variety of its chocolate. Mr. F. W. Vellani thought that this case supported his submission, because there could not possibly ire any trade connection between laxatives and chocolates. The argument sounds plausible, but is not, because the laxatives sold by the applicant was, coated with chocolate and known as chocolate laxatives, and further, unlike the instant case, the respondent had produced evidence of confusion between the competing goods. In any case, the view taken is necessarily based on the majority view in the Eno's case, and, if a powder, which is a laxative, can be confused with a baking powder, then it follows that a chocolate laxative would be confused with chocolate itself.

30. Learned counsel then referred me to several other judgments, which were considered and distinguished by Noor-ul-Arfin, J. (as he then was) in the Kaiser Jeep Corporation's case. As I agree with the view taken in this case,. T will not burden the record by examining these cases. Mr. F. W. Vellani also relied on the English case examined by Tufail Ali A. Rahman, C J. in the Montgomery Flour & General Mill's case. Now, Tufail Ali A. Rahman,. C. J., had examined the Eno's case and followed the majority view in it, but,, for the reasons given by me, in my humble opinion, the minority view in the Eno's case is to be preferred, the moreso, in view of the judgment of the House of Lords seventeen years later in the Dunlop case. Then, as to the other cases examined by his Lordship, as I pointed out earlier,. Jellinek's case not only does not support Mr. F. W. Vellani's submission,. but goes against it. I also observed that the difficulty in the way of the appellant was the express provisions in the said Act limiting the rights conferred by the registration of a trade mark; accordingly I repeatedly invited Mr. F. W. Vellani to cite a case in which provisions similar, for example, to sections 21 and 38 of the said Act had been considered. Learned counsel, therefore, referred me to decisions reported as Annabel's (Berkeley Square), Limited v. G. Schock (Trading as Annabel's Escort Agency) (1972 R P C 838) and Roche Products Limited and another v. Berk Pharmacruticals Limited (1973 R P C 473).

31. Taking first the case of Roche Products, both the parties were selling tranquillisers, and the dispute was about the similarity of the tablets of the parties. The Court of appeal held, on an examination of the tablets, that there was no possibility of confusion between them. I cannot understand how this case supports Mr. F. W. Vellani's argument, and I deprecate the practice of citing decisions which turn entirely on questions of evidence. But I would briefly refer to the other case, because the question was of copying the name of the plaintiff. In Annabel's case, the plaintiff was the proprietor of a club known as Annabel's Club and the defendant ran an escort agency known as Annabel's Escort Agency. According to Mr. F. W. Vellani, there was no connection between the club and an escort agency, and, as the defendant was restrained from using the name "Annabel's" for its escort agency, the sub mission was that the judgment supported the plea of the appellant before me that it was entitled to prevent other persons from using its name for any class of goods whatsoever. The submission is based on a misreading of the judg ment. In the first place, unlike the instant cases, as in all the English cases, the plaintiff had produced evidence of confusion. Secondly, the object of an :escort agency, according to the learned Judges of the Court of Appeal, was to provide lonely gentlemen with escorts for various purposes, including visits to night clubs, and the club run by the plaintiff was a night club. There was thus an obvious connection between the activities of the plaintiff and of the defendant, and I am not able to understand how the submission was advanced, because Russell, L. J. based his decision on the ground that -there was "an overlap in the fields of activity" of the plaintiff and of the defendant.

32. On the other hand, section 27 of the English Trade Marks Act, 1938, was examined, for the first time, in Ferodo's case. As that section 27 corresponds to section 38 of the said Act, this case is far more relevant to the appellant's plea than the English cases cited by Mr. F. W. Vellani.

33. Mr. F. W. Vellani then submitted that his arguments were supported .by American cases. Even if that be so, learned counsel assumed that the American law was in pari materia with the said Act, just as he assumed that the statute construed in the Eno's case was in pari materia with the said Act. But the second assumption was erroneous, and, as the American statute has not been produced, it would be an exercise in futility to examine cases on a statute which might be different. Secondly, I do not think that any useful purpose is served by multiplying decisions on what is a trade connection between competing goods, because, a decision on what is a trade connection is based on the evidence produced in that case, and I would repeat a warning given long ago by Lord Watson: In re Johnston & Co. v. Archibald Orr Ewing & Co. (7AC219). "How can observations of Judges upon other and quite different facts bear upon the present case in which the only question is what is the result of the evidence". These observations in what must be one of the oldest cases on trade marks from the sub-continent are applicable with greater force to foreign decisions, because evidence in trade mark cases is necessarily evidence of the reaction of consumers. But the reaction of consumers depends on circumstances, some of which, such as literacy, spending habits and availability of publicity media, are peculiar to each country. It should also be borne in mind that conditions in this respect in the U. S. A. are very different from ours. Mr. F. W. Vellani, however, relied on the observations in cases on the effect of trade channels; therefore I may point out that trade channels in this country are different from those prevailing in the U. S. A. or even in England, whilst trade channels today in these countries are not what they were a hundred or even fifty years ago. Again, as I explained earlier, concepts of property rights are also relevant, and these concepts as well as forms of economic organisation vary in different countries and in the same country at different times, so, for example, companies, like the I. C. I. and Levers, which deal in a vast range of goods, have emerged in England only in the last fifty years or so, and even then compared, for example, to West Germany, such industrial giants are a handful. But for almost a hundred years, despite anti-cartel legislation, the U. S. A. has been the haven of ,,monopolies and cartels, quite a few of which have been engaged, for many decades, in divers industries and trades totally unconnected with one another therefore the concept of a trade connection in a country like the U. S. A. will be different from and wider than in a country like ours with a simpler economic organisation, and, because American decisions on what is a trade connection have reference to a different economic milieu, the effect of follow ing then would be to take too wide view of a trade connection which would defeat the restrictions in the said Act on the rights of owners of registered trade marks; therefore I would refrain from examining these decisions.

34. Mr. F. W. Vellani then submitted that uniformity of judicial con struction was desirable in statutes on trade mark law, and he feebly attempted to draw an analogy from the international law of carriers. The analogy is totally misguiding, and the question is solely of the intention of the Legisla ture. Thus, the preamble to the Carriage of Goods by Sea Act, 1925, expressly refers to the International Conference on Maritime Law held at Brussels in 1922, and declares that the Act was being promulgated to give effect to the rules relating to bills of lading, which had been agreed to at that Convention. Similarly, the preamble to the Carriage by Air Act, 1934, expressly refers to the Warsaw Convention of 1929, and states that "it is expedient that Pakistan should accede to the Convention and should make provision for giving effect to the said Convention in Pakistan". On the other hand, even though according to Kerly, a Convention on trade marks was held in London in 1934, it is not known whether the then Government of India attended it, and the preamble to the said Act merely states that" it is expedient to provide for the registration and more effective protection of trade marks". Thus, even a casual comparison of the preamble to the said Act with the preambles to these other two Acts, is a sufficient answer to Mr. F. W. Vellani's submission.

35. No other argument was advanced, and I can see no conceivable connection between soft drinks and things like cotton, soap or wool; therefore Miscellaneous Appeals 25/1970, 26/1970 and 27/1970 are frivolous and can only be dismissed. However, I observed earlier that the facts in the Panwala's appeal were somewhat different. This is because the appellant, in this appeal, also relies in its Registration for candies, and, according to Mr. F. W. Vellani, Pan Masalah is something edible in the sense that it is an ingredient in the making of Pan; therefore the further submission was that there was a trade connection between soft drinks and Pan Masalah. I am not able to see the connection, the moreso, as the appellant is a foreign company, and, except the extremely unwary, no one is likely to believe that the Pan Masalah of the respondent, in this appeal, has been made by an American Corporation. However, Mr. F. W. Vellani's submission are supported by the observations of Tufail Ali A. Rahman, C. J., in Montgomery Flour & General Mill's case which I quoted earlier. But, as I explained, those wide observations were not necessary for the decision of that case, and, with the utmost respect, I am not able to agree with them. Secondly, as submitted by the learned counsel for the respondent, the facts in that case are distinguish able, because, unlike that case, the appellant in the instant case challanges the exercise of discretion against it by the Registrar. Therefore, according to the settled law, and this rule was re-armed by Tufail Ali A. Rahman, C. J. the burden was upon Mr. F. W. Vellani to show that there was an error in the exercise of the Registrar's discretion. Learned counsel's only criticism was that the Registrar had not correctly appreciated that the burden of proof under section 8 of the said Act was on the respondent. The submission is not correct, and the real difficulty in the way of the appellant is that it did not produce any cogent evidence in support of its plea of the likelihood of con fusion, or, deception between the competing goods. No doubt, this was for the very obvious reason that it is not even selling candies; therefore what evidence could it produce to show the possibility even of confusion between soft drinks and Pan Maslah? Hence my earlier observation that the question of the burden of proof generally loses its importance after evidence has been recorded before the Registrar. And, on the other hand, on a careful examina tion of the flimsy evidence produced by the appellant, the Registrar reached the conclusion that it did not support the appellant's objections. He also relied upon his experience and referred to the several eases in which the registration of identical trade marks had been permitted when the competing goods had no connection with one another. He, therefore, dismissed the appellant's objections. I see no error in his reasoning, and, on the contrary, I agree with it.

The appeals are without merit and are dismissed with costs.

S. Q. Appeal dismissed.