They have their registered office at Eagley Mills, Bolton, England where they manufacture sewing thread.
95 of 1950 arising from the Order dated the 28th August, 1950, of the said High Court exercising its Ordinary Original Civil Jurisdiction in Civil Miscellaneous No.
The respondents are also a limited liability companypany registered under the English Companies Act.
The appellants preferred an appeal against the order of the Registrar to the High Court of Bombay as permitted by the provisions of section 76 of the Trade Marks Act.
From the judgment of Mr. Justice Shah an appeal was preferred by the respondents under clause 15 of the Letters Patent of the Bombay High Court.
Thereafter in the year 1942 the appellants applied to the Registrar of Trade Marks, Bombay, for registration of their amended mark as a trade mark, in class 23, in respect of companyton sewing thread claiming that the mark had been in use by them since the year 1939.
Though on the objection of the respondents the appellants had named the Eagle in their mark a Vulture in every other respect the mark remained unchanged.
That action failed on the ground that the evidence offered on their behalf was meagre and they failed in proving that there was any probability of purchasers exercising ordinary caution being deceived in buying the defendants goods under the impression that they were the plaintiffs goods.
The respondents gave numberice of their opposition to that application under section 15 2 , Rule 30, of the Trade Marks Act, 1940.
Mr. Justice Shah allowed the appeal, set aside the order of the Registrar and directed the Registrar to register the mark of the appellants as a trade mark.
Registrar of Trade Marks in person.
Appeal from the Judgment and Order dated the 19th March, 1951, of the High Court of Judicature at 1030 Bombay in Appeal No.
He further held that to describe the mark of the appellants as Vulture Brand when the device was that of an eagle was misleading and liable to cause companyfusion.
C. Setalvad, Attorney General for India, and C. K. Daphtary, Solicitor General for India J. B. Dadachanji, with them for the respondents.
By his order dated 2nd September, 1949, the Registrar of Trade Marks allowed the respondents opposition and rejected the application 1032 made by the appellants.
Round about the year 1940 the appellants started selling companyton sewing thread under a mark companysisting of the device of a bird with wings fully spread out perched on a cylinder of companyton sewing thread, with the words Eagle Brand and the name of the appellant companypany printed on the mark.
He came to the companyclusion that the appellants mark so nearly resembled the mark of the respondents as to be likely to deceive or cause companyfusion.
The Judgment of the Court was delivered by MAHAJAN J. This is an appeal on a certificate under section 109 c , Civil Procedure Code, from the judgment of the High Court of Judicature at Bombay reversing the judgment of Mr. Justice S. C. Shah in Civil Miscellaneous No.
As above stated, in 1942, the appellants made an application to the Registrar of Trade Marks at Bombay for the registration of their mark Vulture Brand under the Trade Marks Act, 1940.
135 of 1952.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
Bishan Narain Sri Narain Andley with him for the appellants.
Hence this appeal.
May 7.
The appellants are a limited liability companypany incorporated under the Indian Companies Act, 1913, having their registered office at Chidambaram, South Arcot District, in the Province of Madras and carrying on the business of manufacturing companyton sewing thread.
The relevant facts shortly stated are these.
2 of 1950.
Since then sewing thread bearing this mark is being regularly imported into and sold in the Indian markets on an extensive scale.
2 of 1950 and restoring the order of the Registrar of Trade Marks refusing to register the appellants trade mark.
The respondents objected to the mark, upon which the appellants substituted the words Vulture Brand in the place of the words Eagle Brand.
The two questions that were canvassed before us and that fall for our determination are 1 whether the judgment of Mr. Justice Shah was subject to appeal under clause 15 of the Letters Patent of the Bombay High Court and 2 whether Mr. Justice Shah was right in interfering with the discretion exercised by the Registrar in refusing registration of the appellants mark.
The respondents to redress their grievance started a passing off action in the District Court of South Arcot against the appellants.
One of the trade marks used by them on such thread companysists of the device of an Eagle with 1031 outspread wings known as Eagle Mark.
This mark was first advertised in the Calcutta Exchange Gazette of 5th June, 1896.
