Amritdhara Pharmacy v. Satya Deo Gupta

Relevant Acts and provisions

Trade Marks Act, 1940

Section 10(1)Section 10(2)Section 21Section 8

Provisions considered: Sections 8, 10(1), 10(2) and 21 of the Trade Marks Act, 1940.

Brief facts

Amritdhara Pharmacy had used the mark Amritdhara since 1901 for an ayurvedic medicinal preparation and held it registered. Satya Deo Gupta applied in 1949 to register Lakshmandhara for a similar medicinal preparation, claiming use since 1923. Amritdhara Pharmacy opposed the application as deceptively similar and likely to confuse purchasers. The Registrar allowed registration but confined it to Uttar Pradesh on the ground of acquiescence; the Allahabad High Court removed that territorial restriction and permitted all-India registration, prompting this appeal.

Issues before the Court

1. Are Amritdhara and Lakshmandhara deceptively similar under Section 10(1) of the Trade Marks Act, 1940?
2. Should similarity be judged from the standpoint of an average purchaser of imperfect recollection rather than by dissecting the words?
3. Was removal of the territorial restriction correct?

Court's findings

The Court held that the question of deceptive similarity must be judged not by placing the two marks side by side to detect dissimilarities in their component parts, but by considering the overall structural, phonetic and visual impression each mark would leave on the mind of an average purchaser of imperfect recollection. It observed that both marks covered the same class of medicinal preparations sold to the same class of customers, many with little formal education, who would go by the overall phonetic impression of the composite word rather than its literal meaning.

The Court noted that dissecting the two names into their Sanskrit-derived roots to show distinct dictionary meanings, as the High Court had done, was an unrealistic approach unsuited to the ordinary unwary purchaser.

The Court held that the two names, when pronounced, were sufficiently similar in sound and structure to cause confusion or deception, and that the Registrar had properly exercised the discretion to permit limited registration in view of honest concurrent use and the appellant's acquiescence in Uttar Pradesh.

Decision

Appeal allowed; the High Court judgment was set aside and the Registrar's order restored, permitting registration of Lakshmandhara confined to Uttar Pradesh.

Keywords

Acquiescence Deceptive Similarity Honest Concurrent Use Imperfect Recollection Phonetic Similarity