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Judgment
V. Ravi, Technical Member
The appellant herein pray for the setting aside of the order of refusal of the trade mark CANDIA under application No. 826084 by the Deputy
Registrar of Trade Marks, Kolkata, dated 27th June, 2007 in Opposition Cal-213063. The facts of the case briefly is as follows:
• The appellant is a reputed French company engaged in the business of manufacture & sale of milk and milk products including butter, cream,
infant milk powder for babies etc. The impugned application was filed by the appellant's predecessor Candia S.A. in 1998. Later in 2005 the
proprietorship of the mark was transferred to Cadillac S.A. (formerly known as Compagnie Europeenne de Diffusion de produits lactes). The
appellant started their business operation under the mark Candia in France from 1971 by regrouping the regional milk cooperatives in France. The
expression Candia is a original, fanciful and a coined term and inherently distinctive and identified with the goods of the appellants. It is in use in more
than 50 countries including India. It is an internationally well known trade mark for milk and dairy products. In 2005 alone the world wide annual sale
of milk products under the trade mark CANDIA was over 600 million litres.
• In India the appellants started sale of ice creams under the trade mark CANDIA from about 2005 in association with M/s. CREAM BELL their
Indian business associate with whom it entered into a franchising agreement including licensing of the trade mark Candia.
• The appellant are the registered proprietor in India of the trade mark CANDIA in Class 29, 30, 32 & 43.
• An application has also been made to the Registrar of Trade Marks for the recordal of change of ownership of trade mark CANDIA from
Candia S.A. to Cedilac S.A. awaiting action.
• The impugned application is for the registration of Candia in respect of ""Dietetic substances, food for babies all being goods included in Class 5"".
This was opposed by the respondent herein who are the owners of the trade mark CANDID in respect of ""pharmaceuticals and medicinal
preparations and substances in Class 5"". The appellants submit that the opposition is highly untenable, frivolous and a fictitious proceeding as there is
no real conflict between the competing marks and the goods which are totally different and poles apart. The word Candid is a common English word
and apparently derived from the term Candida which is a medical term for fungal infection which occurs in exposed and moist parts of the body such
as the oral cavity, the vagina and/or vulva (vaginal candidacies or thrush), folds of skin in the diaper area (diaper rash), the ear, etc. The mark Candid
is used in the form of ointments, lotion, gel, cream and powder. On the other hand, the impugned mark which is already protected in Class 29 was
applied for registration in Class 5 for ""Infant milk food for babies"" as the appellant also produce a range of such products and it is for that reason alone
that they applied for the registration of the impugned mark in Class 5. The competing goods and mark are so different that it is totally inconceivable
and absurd to hold that they are likely to cause confusion. The trade channel and end users are totally different.
• The rival marks CANDID and CANDIA are phonetically very different. The terminal letter 'A' in the applicants' mark CANDIA is emphatic and
cannot be slurred in pronunciation. The mouth has to open to pronounce the last syllable of the mark 'CANDIA'. The respondents are trying to assert
a excessive monopolistic right over the expression 'CANDI' which in fact is a commonly used prefix in respect of pharmaceutical and medicinal
preparations. There are a number of registered trademarks in India in Class 05 having the prefix CANDI in the name of different proprietors other
than the respondent herein some of which are listed below:
It is submitted that when the afore-mentioned CANDI-prefixed trademarks in respect of goods identical to those of the respondent can co-exist on the
trademark register, the opposition filed against the appellant's mark in respect of totally different and unrelated goods is wholly untenable, vexatious
and frivolous.
• Despite stark differences between the marks and goods, the appellant in keeping with its global policy in maintaining commercial peace and
harmony through fair competition were even willing to restrict its goods in the impugned application by deleting ""dietetic substances"" and restricting the
use of the mark to ""Food for babies"" alone. This settlement proposal was declined by the respondent.
• Subsequently, the respondent herein mischievously filed an identical trade mark CANDIA under no 1232049 in Class 5 on 4th September, 2003.
This was apparently done with the malafide intention of mis-appropriating the appellant's trade mark CANDIA. The said application was duly opposed
by the appellant herein and is pending adjudication. However, the bad faith of the respondent may be taken due note of in adopting an identical well
known trade mark CANDIA. The Deputy Registrar's order dated 27th June 2007 refusing the impugned mark is wholly erroneous and contrary to
settled principles of law and facts and circumstances as detailed below:
i) Deputy Registrar had erred in holding that the impugned mark would lead to confusion in the mind of public which would lead to confusion in the
goods.
ii) The Deputy Registrar has failed to appreciate the visual and phonetic difference in the competing marks and goods. He has twisted the
interpretation of the trade mark dictum concerning confusion amongst ""Man of average intelligence and imperfect recollection"" by stretching it to
infinite limits.
iii) The Deputy Registrar has further seriously erred in relying on the decision of this Board in Ind Swift Ltd. Vs Registrar of Trademarks reported in
2005 (30) PTC 646 concerning the registrability of the mark STEMIZ for pharmaceutical goods in Class 5. In that case, the applicant was using the
mark STEMIZ for ""ASTEMIZOLE"" whereas the opponent's registered trade mark STEMIN was also for medicinal product. In the case on hand, the
goods, users, trade channel and consumers are polls apart.
iv) The Dy. Registrar has seriously erred in relying on the reported decision (1944)-61 RPC -31-V ""Aktiebolaget Jonkoping Vulcan vs. V.S.V.
Palanichamy Nadar And Ors."" where it was held that milk products for foods meant for infants and invalid are of the same description as medicated
'vitamin preparation' in tablet form for human use. The comparison is totally irrelevant to this case.
v) The respondent of their own showing are the proprietors of various composite words containing other letters, words, etc. like CANDIDV, 'KETO-
CANDID' 'CANDIBIOTIC, 'CANDID-B', 'CANDID V1', 'CANDIDERMA', 'CANDITRAL' and this is even more reason why the rival marks are
unlikely to cause confusion. The terminal letter 'A' of the appellants mark CANDIA cannot be slurred in pronunciation and the prefix Candi of the
respondent are common to trade in the pharma trade.
vi) The Deputy Registrar further gravely erred in relying on the decision of the Hon'ble Supreme Court in Corn Products Refining Co. vs. Shangrila
Food products AIR 1960 SC 142 where registration of GLUVITA for biscuit falling in Class 30 was refused based on the registered mark Glucovita in
Class 5 & 30 for Glucose. The decision was based on the admission by the applicant that Glucose was used in the manufacture of biscuit. There is no
such trade connection in respect of the impugned mark with the respondent's trade mark.
vii) Similarly, the Deputy Registrar again gravely erred relying on the decision reported in 1974-RPC 583
British Sugar Plc vs. James Robertson & Sons Ltd."" where the mark Floradix for 'Diatetic Herbal Elixirs' was refused registration on the ground that
it conflicted with 'Fluorodix' and 'Flurodix' for medicinal preparation for treatment of teeth and gum diseases. In that case, the deciding factor was the
closeness and proximity of the rival marks. Besides, the impugned mark CANDIA was adopted long before the respondents registered trade mark
CANDID.
viii) The Deputy Registrar further erred in holding that the competing goods are sold in all medicinal and pharmaceutical stores. He failed to appreciate
that the appellant's goods-foods for babies are generally sold in food stores and super market and never share the same shelf space as the
respondent's goods.
ix) The Deputy Registrar despite sustaining the proprietary claim of the appellant of the impugned mark CANDIA seriously erred in holding that the
registrability of the trade mark had to satisfy the other mandatory provisions of the Act. His conclusion that the impugned mark is only 'proposed to be
used', and no harm or prejudice would be caused by its refusal is bad in law and on facts. The impugned mark is already widely used in respect of ice
creams and appellants are expanding their business for milk food products for babies.
x) The Deputy Registrar had also erred in consciously refraining from commenting on the respondents 'bad faith' in seeking registration of the
impugned mark while unnecessarily casting aspersions on the conduct of the appellant in withdrawing their another application for CANDIA under
No. 826081 which was also filed on the same date as the impugned mark on 5th November, 1998.
xi) In view of the foregoing the appellants pray that the order and decisions of the Deputy Registrar be set aside and quashed and the impugned mark
be directed to proceed to registration.
The case of the respondents is as under:
i) The appellants have filed the present appeal along with incomplete proceedings that were part of the record before the Deputy Registrar of Trade
Marks. They have not produced the entire evidence of the respondents and have merely filed the affidavit under rule 50 without exhibits. By this
action, the appellants have deliberately suppressed vital evidences of the respondents with a view to mislead the Board. They have thus approached
the Board with an unclean hand and the impugned appeal ought to be rejected at the threshold.
ii) The decision and order of the Dy. Registrar are reasoned and the findings are neither arbitrary nor capricious and there is no cause to disturb the
ruling. The present appeal is beyond the scope of documents that were available with the respondent at the time of deciding the opposition. New
grounds are now sought to be added which were not pressed at the time of hearing.
iii) The respondents is counted amongst the front runners in the Indian pharmaceutical industry and have nation wide distribution network through
various dealers and stockist. The respondent has leadership status in niche segments like dermatology, diabetics and internal medicines and their
business spans over 91 countries across the globe.
iv) In 1978 the respondents honestly and bonafidely adopted the trade mark CANDID to distinguish its goods and by and by introduced a series of
CANDID family formulation at regular intervals such as CANDID cream, Candid lotion, Candid powder, Candid Vaginal tablets & Gel, CANDID
drops for ear bearing the mark CANDID either as a prefix or as a suffix. Because of the high quality and reliability of the goods CANDID has
become a household name in India and abroad. The impugned mark is identical or deceptively similar to the trademark CANDID of the respondent.
The appellants are wrong in seeking registration of the impugned mark for goods falling in Class 5. Further, the CANDID of the respondent is used
for treatment of superficial fungal infection.
v) It is true that the mark CANDID is a dictionary word but the respondent submit that it has acquired a secondary meaning and is factually distinctive
of their goods. Moreover, the addition of a single letter between the rival mark is hardly significant to distinguish one from the other. The Dy. Registrar
has come to the right conclusion that the competing marks are deceptively similar and no other view is possible in the facts and circumstances of the
case. The appellants are trying to harm and mitigate the prior rights of the respondents and the registration of the impugned mark would cause great
injury diluting the fame of the respondents trade mark.
GIST OF REPLY AFFIDAVIT UNDER RULE 11 OF (IPAB) (PROCEDURE) RULES BY THE APPELLANT:
• The allegation that the entire records of the lower court has not been produced has nothing to do with the appellant. It is highly inappropriate to
allege that the appellant have come to the Board with an unclean hand. This appeal is maintainable both in law and fact and the impugned order of the
Deputy Registrar suffers from serious infirmities due to non-appreciation of basic facts. It is also denied that the appellant and the respondents are in
the same trade channel. The findings of the Deputy Registrar are completely misconceived and the use of the trade mark CANDIA in respect of milk
food for babies will never cause any confusion or deception. The Deputy Registrar had failed to appreciate that the International Classification of
Goods is merely an administrative tool and that the Class number should not be the determining factor whether two types of goods are the same or
similar. The respondents are hurling baseless allegation against the appellant. The Deputy Registrar has himself upheld the claim of proprietorship of
the appellant for the impugned trade mark CANDIA. Despite this the findings of the Deputy Registrar in refusing the impugned mark are erroneous,
contrary to settled principles of law and liable to be set aside.
The evidence in support of appeal consists of a number of documents running over 400 pages to establish that the trade mark CANDIA qualifies
for registration under the Act. These include list of countries in which the impugned mark has been registered, new paper advertisements, press
clippings, copies of registration certificate in respect of the impugned mark registered in India in Class 29, 30 and 42, registration certificate of the
mark CANDIA in other countries, turn over particulars etc. The appellant have also filed two Miscellaneous Petition under no. 123/2007 and 149/2009
for the stay of the operation of the Dy. Registrar's order dated 27.06.2007 refusing the impugned trade mark both of which were dismissed by the
Board vide order dated 31st March, 2009 and 30th July, 2010 respectively.
The evidence of the respondent in support of his case is an affidavit of one Archana Madhav Bene, Asst. Manager, Legal of the respondent
company; particulars of respondent company; copy of statement of sales turn over and promotional expenses; copies of invoices; copy of
advertisements in medical trade journal etc.
The matter was listed for hearing on 13.06.2013. The following authorities were relied on by the appellant:
A. IPAB Order No. 27/2011 OA/33/2008/TM/CH dated 13.06.2011.
Syngenta Limited Vs Hyderabad Chemical Supplies Limited.
It referred to the Pianotist Case as also the DROPOVIT case and reached the conclusion that the IMICON pesticide as a proposed mark did not
conflict with registered trade mark ICON for the same goods.
B. ""Hoffman-la Roche & Co. Ltd. Vs Geoffrey Manner & Co. Pvt. Ltd. "" - SC (Civil Appeal No. 1330) -AIR 1970 SC 2062
Held, the competing marks DROPOVIT and PROTOVIT were dissimilar and there was no reasonable probability of confusion.
C. ""Burroughs Wellcome (I) Ltd., Vs American Home Products and Anr. - 2002(25) PTC 747(Bom), Headnote reads:
Petitioners sought to oppose registration of trade mark ACTICEPH proposed to be used for medicinal and pharmaceutical preparations. Petitioners
are owner of mark ACTIFED. Though prefix ACT is common, two rival marks are dissimilar when considered as a whole and when words are
entered in block letters test of confusion of deception does not exist at all even if hastily written. Registrar has given finding that two words are
structurally, visually, phonetically, textually and materially different. Finding of fact based on material before Registrar cannot be upset. There is
restriction on distribution of rival products because drug of respondent would be sold under medical prescription. Chances of confusion or deception
would be greatly diminished. Words Act and Act I have medical significance and some descriptive meaning. When finding is that mark itself is not
likely to cause deception or confusion there is nothing wrong in finding given by Registrar that objection under Section 11(a) need not be considered.
Petition dismissed.
D. ""Novartis A.G. Vs Wanbury Ltd. and Anr. Held, defendant's mark CORMINIC cannot be said to be deceptively similar to the TIAMINIC or
TRIOMINIC. Plaintiff failed to establish prima facie case in the injunction application.
E. ""Mount Mettur Pharmaceuticals (P). Ltd., Vs A. Wander"" AIR 1977 Mad 105 Appellant sought registration of the word 'ATHMIX' for treatment
of asthma. Opposed by owner of TM 'ASMAC. Assistant Registrar found real tangible danger of confusion and rejected plea of concurrent user and
dismissed the application. On appeal single Judge held mark dissimilar and chances of confusion almost nil. On further appeal, Division Bench
confirmed no deceptive similarity between the two marks.
F. ""Apex Laboratories Lt. Vs Zuventus Health Care Ltd. on 26th April, 2006""- (2007) 1 MLJ 657, 2006(33) PTC 492 Mad-HC Appellant herein are
the manufacturers of pharmaceutical products and have adopted the trademark ""Zincovit"" and the respondents are manufacturing and selling
pharmaceutical products under the trade mark ""Zinconia"". Held, no phonetical dissimilarity and no likelihood of confusion and Asst. Registrar was
wrong in refusing registration.
G. ""Shreya Life Sciences Pvt. Ltd. Vs Magna Biochem Pvt. Ltd.
The question was whether defendant entitled to trade mark ""DYGEX"" for pharma products? Plaintiffs tablet in light blue foil strip with the word
DIGIPLEX set in narrow strip. Held, no prima facie case of infringement made out. Order of lower court vacated.
H. ""Gufic Ltd. and Anr. Vs Clinique Laboratories, LLC and Anr."" - MIPR 2010 (2) 411.
Defendant/Appellants filed appeal against Order of Single Judge allowing applications of plaintiff/respondents to restrain defendant from using the
mark SKINCLINIQ or similar mark to CLINIQUE of plaintiff. Held, the test of deceptive similarity in the case of infringement is the same as in a
passing off action. Held, SKIN CLINIQ not similar to CLINIQUE.
I. ""M/s. Nutrine Confectionery Co. Vs M/s. Icon Household Products Pvt. "" - 1998 PTC (18) 698; PTC (Suppl.) 2(680)
Original application was filed seeking interim injunction to restrain respondents from using TM LACTO contained in their (respondents) mark
'CANDYMAN LACTO CREME CENTRE'. Applicant's trade mark was 'NUTRINE MAHA LACTO'. Held, applicant failed to establish a prima
facie case of infringement.
J. Reports of Patent, Design and Trade Mark Cases (Vol. LXIII) -Application to Register "" PANDA "" for shoe polish -[In re: an application by
Ladislas Jellinek -63 R.P.C., 59]
Application to register ""Panda"" for shoe polish-Opposition by proprietors of same mark for shoes-goods not of same description-Normal channels of
distribution different-No sufficient proof that opponents' mark known to public at date of present application--Neither registration nor Trade Year
Book is evidence of use-No risk of confusion--Registration allowed _ Application to introduce further evidence on appeal refused _Importance of
declarants stating date to which their evidence relates.
K. ""Vishnudas Trading as |Vishnudas Kishandas Vs Vazir Sultan Tobacco Co. Ltd. Hyderabad and another"" - AIR 1996 SC 2275- Case note reads
as:
The respondent company obtained registration in respect of 'manufactured tobacco'. Appellant also manufactured quiam and zarda under same trade
mark 'Charminar'. Appellant applied for registration of said trade mark. Objections raised by respondent company on ground that similar trade mark
already been registered. Whether submission of respondent-company sustainable? Where trader or manufacturer actually trades in or manufactures
only one or some of articles coming under broad classification and such trader or manufacturer had no bona fide intention to trade or manufacture
other goods-such trader or manufacturer cannot precludes other traders or manufacturers to get registration of separate and distinct goods which may
be grouped under the broad classification.
L. Other cases referred:
a. ""Osram Gesellschaft Mit beschrankter Haftung Vs Shyam Sunder and Ors.""- 2002(25) PTC 198(Del.) - 2002(25) PTC198 (Del)
b. ""Nestle's Products Limited and Vs Milkmade Corporation and Anr. "" - AIR 1974 Delhi 40, ILR 1973 Delhi 203
c. ""Balkrishna Hatcheries Vs. Nados International Ltd. and Anr.""- 2007 (4) Bom CR 48
The following authorities were relied on by the respondent:
A. ""Trade mark Supervita"" - in the matter of applications by John Taylor Peddie. 1944 (61) R.P.C. 31 dated 13.06.2013.
Trade Marks-Cross Proceedings-Applications by the registered proprietor of a trade mark ""Supervita"" for further registrations of that word-Opposition
by the registered proprietors of trade marks consisting of or including the word ""Supavite"" - Applicant applying also for rectification of the entries of
the Opponents' marks in the Register--Opponents' mark ""Supavite""(alone) wrongly registered in view of Applicant's prior registration and use of
Supervita"" and in the absence of any special circumstances-Rectification ordered despite the use made of Opponents' mark since the date of its
registration--Opponents' ""Supavite"" label mark in a different position because of other special circumstances--Opponents' adoption and use of their
marks honest despite their knowledge of the Applicant's mark --Only slight risk of confusion-Substantial use of Opponents' label before date of
registration, coinciding with non-use of Applicant's mark due to special circumstances permitted sufficient to support his applications for registration-
Trade Marks Act, 1938, Sections II, 12 and 32.
Held: (I) that milk products for food (including infants' and invalids' food of that kind) are goods of the same description as medicated vitamin
preparations in tablet form for human use; and that vegetable juices for use as beverages or for making beverages, and fruit juices, are-but cereal
preparations for food (not including infants' and invalids' foods) are not-goods of the same description as medicated vitamin preparations in capsule
form for human use; that ""Supavite"" so nearly resembles ""Supervita"" as to be likely to deceive or cause confusion if they are used as marks for goods
respectively of the same description; (3) that an aggrieved applicant for rectification, who has shown that the mark attacked was wrongly registered,
is entitled to have it removed notwithstanding subsequent events which might support a fresh application for registration;(4) that the registered
proprietor of a mark alleged to be wrongly registered in rectification proceedings, is not disentitled in those proceedings to claim the advantage of
Section 12(2) and produce evidence of circumstances relevant thereto, subsisting at the date of the registration; (5) that the adoption and use by a
trader of a mark may be honest despite his knowledge of a similar mark already in the Register; (6) that a short period of concurrent use, in
combination with their special and exceptional circumstances, may enable a trade mark to be registered despite the presence in the Register of a
closely resembling mark; and (7) that a bona fide intention on the part of an applicant to use, when circumstances permit, a mark temporarily debarred
from use because of prevailing difficulties and uncertainties in trade is sufficient, apart from other considerations, to justify an application for
registration.
B. ""Corn Products Refining Co. Vs Shangrila Food Products Ltd. "" - AIR 1960 SC 142 : PTC Suppl.) (1) 13 (SC)
Held-In deciding whether two marks are so similar as to likely to deceive or cause confusion, the similarity of idea is a relevant factor.
C. ""Cadila Health Care Ltd. Vs. Cadila Pharmaceuticals Ltd."" - 2001 PTC 300 (SC)-
Held: In an action for passing off on the basis of unregistered trade mark generally for deciding the question of deceptive similarity the following
factors to be considered:
a) The nature of the marks i.e. whether the marks are word marks or label marks or composite marks, i.e. both words and label works.
b) The degree of resemblance between the marks, phonetically similar and hence similarity in idea.
c) The nature of the goods in respect of which they are used as trade marks.
d) The similarity in the nature, character and performance of the goods of the rival traders.
e) The class of purchasers who are likely to buy the goods bearing in mind the marks, the level of education and intelligence and the degree of care
they are likely to exercise in purchasing and/or using the goods.
f) The mode of purchasing the goods or placing orders for the goods and
g) Any other surrounding circumstances which may be relevant in assessing the extent of dissimilarity between the competing marks.
Weightage that is to be given to each of the aforesaid factors depends upon facts of each case and the same weightage cannot be given to each
factor in every case.
D. ""Glenmark Pharmaceuticals Ltd. Vs M/s. Bal Pharma Ltd."" and the Dy. Registrar of Trade Marks - 2009 (40) PTC 732 (IPAB)
Section 21 - Opposition-Trade mark 'Candizone' - Appellants have been using different trade marks like Candid, Candidern, Canditral and the use of
the trade mark 'Candizole' is likely to cause confusion-When the marks is considered as a whole likely to cause confusion, the registration should be
refused-Held, that Appellants being prior in use and their rights should be protected by refusing the first respondent's application for registration of a
deceptively similar trade mark.
SUMMARY OF THE ARGUMENTS OF THE APPELLANTS COUNSEL:
The learned counsel for the appellant began the argument by stating that the business of the applicant related to milk products and they are the
subsequent proprietor of the impugned mark CANDIA. The respondent's mark is CANDID. The appellants goods are dietetic substance for baby
food. The appellants mark is used in more than 50 countries. The impugned mark CANDIA is a fanciful term and is inherently distinctive. In
comparison, the respondent's mark CANDID is totally different phonetically, structurally and visually. The two marks and the competing goods are
totally poles apart. He relied on the 'Panda' case in support of his arguments. He also alleged malafide on the part of the respondent and prayed that
the impugned order of the Deputy Registrar be set aside and the mark CANDIA be directed to proceed for registration.
SUMMARY OF THE ARGUMENTS OF THE RESPONDENT'S COUNSEL:
The learned counsel submitted that the annual turn over for the CANDID group of products is over Rs. 75 crores. Further the appellants trade mark
CANDIA is only 'proposed to be used'. There is no evidence of use and there is no sales document. Brochures without use of the mark is of no use.
The competing goods are of the same description and both are sold in medical shops.
GIST OF REBUTTAL BY THE APPELLANT:
The impugned mark for infant and baby milk products are generally available in super markets and general stores. However, there may be sale in
stray medial shops of the appellants goods. In any event, the appellants goods have nothing to do with treatment of infectious disease sold under the
respondent's mark CANDID and the appellant's customer are of a specific category namely infants milk products and the likelihood of confusion is
very far fetched, if at all. The respondents are making mountains out of nothing. The appellants were the first to coin and adopt the trade mark
CANDIA and therefore there is no way allegations of having copied or pinched the respondents mark can be established.
We take the objection raised under Section 9 first. The impugned mark is CANDIA. It is an arbitrary word probably an invented expression. It has
been used as a trade mark since 1971 in the home country of the appellant i.e. France. It is registered and in use over 50 countries. In India the
impugned mark is already in use for ice-cream. The appellant have also registered the impugned mark in India in several classes. The respondent's
mark was born in 1978 much after the appellant's mark has taken off in various markets. The impugned mark is inherently distinctive having no
reference to the character or quality of the goods. Inherently distinctive mark are registrable in India on a 'proposed to be used basis' and passes
muster under Section 9. It has no descriptive meaning. The impugned mark serves as a badge of origin of the appellant's good. Put it differently, the
impugned mark CANDIA is incapable of fair and honest application to the goods of anyone else and easily qualifies for protection under Section 9 of
the Act. There is simply no obstacle for the appellants and we find no merit in the allegation that Section 9 is a bar to the registration of the impugned
mark.
We next examine the objection under Section 11 of the Act. To elucidate the law on the point, the sort of confusion required to satisfy an objection
on relative ground under Section 11 relates to the origin of the goods. It is not enough that on seeing the impugned mark CANDIA, the earlier mark
CANDID is called to mind if there is no possibility of the customer being under misapprehension as to the origin of goods. The mere association which
the public might make between the two mark CANDIA and CANDID as a result of their analogous semantic content is not in itself sufficient ground
for concluding that there is a likelihood of confusion within the meaning of Section 11(1). In the instant case, the competing goods medicinal products
and milk food products for infant are totally unrelated and pertain to two very distinct and different markets. Even if users of products bearing
CANDID recall CANDIA to mind it is of no consequence. There is zero possibility of confusion and the competing goods are meant for different
purpose. There is not even the remotest chance of customers mistaking the mark of one for the other. In our judgment the consuming public are
unlikely to make a connection between the mark of the appellant and the earlier mark of the respondent. As regards the issue rival goods, there are
several objective considerations that weighed in our mind in deciding they are poles apart. Both are used for entirely different purposes. The physical
nature of the goods are totally different. The trade channel through which they reach the market are also distinct. Neither goods are in competition
with each other nor are they a substitute for each other. In our judgment the consuming public are unlikely to make a connection between the mark of
the appellant and the earlier mark of the respondent. The competing goods belong to different market sectors and there can be no legitimate basis of
an apprehension of confusion. An objection under section 11(1) is not sustainable unless the goods the subject of earlier trade mark (CANDID) are
similar to the impugned mark. That is not the case here. The respondent have not adduced any evidence of similarity of goods. Section 11(1) provides
that the likelihood of confusion presupposes that the goods are identical or similar. In the case on hand, the test of similarity fails at the threshold.
Hence the objection under Section 11 fails miserably.
The Deputy Registrar has himself ruled that the appellant are the true owners and legitimate proprietor of the trade mark CANDIA within the
meaning of Section 18(1) of the Act. In appeal before us, no valid ground has been raised by the respondent why we should upset this finding. In fact
this ruling by the Deputy Registrar is a candid acknowledgement that the appellant are bonafide adopter and first user of CANDIA. In the result
OA/46/2007/TM/KOL is allowed and application No. 826084 is to proceed for registration. There is no order as to costs.