General Electric Company Of India ... vs Goel Engineering Company And Ors.
2003 Latest Caselaw 993 Del

JUDGMENT

Pradeep Nandrajog, J.

1. The present petition is directed against the order dated 26th April, 1994 passed by the Registrar of Trade Marks disallowing Opposition No. DEL 6426 and allowing application No. 446960 filed by the respondent.

2. The respondent Goel Engineering Company filed an application for registration of the trade mark "Gec" in respect of hand pumps, chaff cutter, blades and chaff cutter machines in Class 7. The application was filed on 17.12.1985 and on being advertised, the petitioner, "GEC ALSTHOM INDIA LIMITED" filed its objection averring that it was the registered proprietor of the trade mark "G.E.C." (Special scripts) and that these registrations were in respect of electronic machinery and electronic goods in Class 7, 9, 11 and 12. It was averred that the mark "Gec" for which the respondent had sought registration was deceptively similar and was likely to cause confusion, and therefore, should not be registered.

3. The Registrar of Trade Marks held that the trade mark of the petitioner was in letter form "G.E.C." which was incapable of being phonetically pronounced and the trademark applied for by the respondent was "Gec", which could be phonetically pronounced. The Registrar of Trade Marks held that the trade mark of the petitioner consisted of 3 letters "G.E.C." each in capital whereas, the trade mark applied for by the respondent consisted of the letter "G" in capital without a full stop. Letters "ce" in small form, and therefore, it was neither a case of phonetic nor visual similarly. In this view of the matter, the Registrar of Trade Marks came to the conclusion that the mark of the respondent was entitled to be registered under the Trade and Merchandise Act.

4. Mr. Manmohan Singh, learned Counsel for the petitioner contended that the petitioner had as many as 11 trade marks registered in its favor with the mark "G.E.C." written in Special Script and the fact that the respondent was using their very three alphabets was enough to deny registration in their favor. Counsel contended that there were various judgments tinder which trade-marks which consisted of alphabets were held to be deceptively similar.

5. As a general proposition, submission of learned Counsel for the petitioner may be sound but each case has to be decided on its own facts. The ultimate test to determine whether two marks are deceptive similar is not to place them side by side but to apply to the test of an ordinary person having imperfect memory trying to remember a mark which he had seen and connecting it with the mark which was before him. Visual deceptive similarity has to be decided on the aforesaid test. Phonetic deceptive similarity has to be decided on the phonetic sound which would emerge when a trade mark consisting of letters is pronounced.

6. The undisputed position is that the trade mark of the petitioner cannot be phonetically pronounced as it consists of the 3 alphabets "G. E. C.", each having a full stop in between and each being in capital form. It is incapable of being phonetically pronounced as "GEC". The trade mark of the respondent could be read by any person seeing it is Gec. The alphabets used are "G" (in capital form) "ec" (both in small letters). To my mind, the Registrar of Trade Marks has correctly applied the law. The findings arrived at cannot be labelled as perverse or such which require interference by this Court under Article 227of the Constitution of India. The petition is dismissed.

Since none appeared for the respondent at the hearing, there shall be no order as to costs.