AIR 1975 MADRAS 74 ::(1975) 1 MadLJ103

Madras High Court

Hon'ble Judge(s): Kailasam, Maharajan , JJ

Trade and Merchandise Marks Act (43 of 1958) , S.12(1)— Registration - Contest between medicinal preparations 'utogynol' and 'Ortho-gynol' already registered - No confusion or deception likely to be caused. A.A.O. 278 of 1966 (Mad.), Reversed. Each of the trade names consists of four syllables last two of which, gynol are common. There is however, nothing distinctive about this word. It is not an invention and as such is not an exclusive property of the objector-respondent. As regards the first two syllables of the trade names, orthographically and phonologically 'Ortho' and 'uto' are strikingly dissimilar and even making allowance for the mispronunciation of illiterate customers and the illegibility of doctors' prescriptions, there is little likelihood of any one confusing between these two words. Moreover the word 'ortho' is not an invented word whereas the word 'uto' appears to be an invention. Hence registration of the trade name 'utogynol' cannot be refused. However, to meet the objection of the objector-respondent who used 'ortho-gynol' in the form of a jelly the applicant-appellant gave an undertaking that he would not use 'utogynol' except in the form of a liquid or a tablet to be taken orally and the registration was directed to be made on condition embodied in the undertaking. .....