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First Appeal from Original Order No.214 of 1983, decided on 29th April, 1987.

---Ss.8(a) & 10(1)--Trade mark--Appellant objecting to registration of trade mark of respondent firm on ground of its similarity with trade mark of same goods produced by appellant--Registrar, Trade Marks, ordering registration of respondent's trade mark with minor modifications and directing that goods under that mark would not be marketed in district where appellant was carrying on business--Two marks were so similar to naked eye that any customer was most likely to be deceived by taking one for the other--Respondent carrying on business at a place where appellant ran its business and it was during course of pendency 'of its application before Registrar that respondent shifted its place of business to other district which made almost impossible for appellant to oversee activities of respondent whether or not it would refrain from marketing its goods in the district where appellant carried on business--Order of Registrar, allowing registration of respondent's trade mark with modifications, set aside circumstances.

Muhammad Iqbal for Appellant.

Akhtar Ali Chaudhry for Respondent.

Date of hearing: 29th April, 1987.

This appeal arises out of the decision of the Registrar of Trade Marks, respondent 2, dated the 2nd August, 1983, rejecting the appellant's opposition to the registration of respondent 1's mark comprising of word Cottage with a device of lady in a sitting posture with curtain in the background and a rainbow at the centre of the label for hair removing powder. The appellant got his mark with the word College with almost similar figure of the lady and design of curtain and rainbow for its hair removing powder registered as far back as in 1960. Respondent 1 applied for the registration of mark in 1981. The appellant opposed the registration of respondent 1's mark as it was likely to deceive or cause confusion as envisaged by sections 8(a) and 10(1) of the Trade Marks Act, 1940. However, the -Registrar of Trade Marks ordered the registration of respondent 1's. mark with minor modifications and directed that the goods under that mark would not be marketed in Faisalabad district where the appellant was carrying on business.

2. That two marks are so similar even to the naked eye that. any customer is most likely to be deceived by taking the one for the other. The word 'Cottage' on the mark in dispute in written in such a manner as it bears close resemblance to the word 'College' appearing on the appellant's mark. Even with the small modifications respondent 1's mark is likely to cause confusion in the minds of the customers in distinguishing it from that of the appellant and they are apt to be deceived. In the circumstances it was a fit case in which the registration of respondent 1's mark, in view of the opposition of the appellant, ought to have been disallowed.

3. It may be mentioned that respondent 1 carried on business at Faisalabad where the appellant runs its business and it was during the course of pendency of its application before the Registrar that respondent 1 shifted its place of business to Bahawalpur. It is almost impossible for the appellant to oversee the activities of respondent 1 whether or not it would refrain from marketing its goods in Faisalabad district. Consequently the appeal is accepted, the impugned order of the Registrar is set aside and the registration of respondent 1's mark with modifications is disallowed. The appellant will get costs of this appeal from respondent 1. The cross objections filed by respondent 1 are without any force and are dismissed.

M.Y.H./M-197/L Appeal accepted.

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