Vishnu Cement Limited vs B.S. Cement Private Limited

S. Jagadeesan, J

The appeal is directed against the order of the Assistant Registrar of Trade Marks, dated 4.9.1997, allowing the objection raised by the

respondent for the registration of the appellant's trade mark “VISHNU CEMENTâ€​.

The appellant herein filed an application on 29.5.1986, to register the mark consisting of the words “VISHNU CEMENTâ€​ with a device of

a bag enclosing a device of a conch, letter ‘V’ within the cog-wheel on a label, in respect of Portland cement in Class 19. After some

preliminary objection, the mark was advertised as accepted in the trade mark journal on 1.9.1991. The respondent herein filed a notice of

opposition objecting to the registration of the appellant's mark on the following grounds:â€

that VISHNU is a very common personal name and its registration would contravene the provisions of Sec. 9(1)(d) of the Trade and

Merchandise Marks Act, 1958 (hereinafter referred to as the Act);

that on the relevant date, applicants' mark was only proposed to be used and, therefore, the applicants cannot prove the factual distinctiveness

of the mark;

that VISHNU is the second person of the Hindu Trinity, representing the principle of stability and as such the use of word Vishnu is likely to

bear a direct reference to the character and quality of the goods. The use of the trade mark is likely to hurt the religious susceptibility of major

Hindu community and as such it offends Sec. 11(d) of the Act as well as Sec. 11(e) also.

The Assistant Registrar of Trade Marks under the impugned order upheld the objections of the respondents that the registration of the trade

mark is barred under Sec. 9(1)(d) of the Act since the word VISHNU being very common popular personal name in India. The Assistant

Registrar of Trade Marks further held that the mark of the appellant cannot be considered to be a distinctive one within the meaning of Sec. 9(1)

(e) of the Act. However, the Assistant Registrar, Trade Marks, rejected the objections of the respondent in respect of Secs. 9(1)(a), 11(d) and

11(e) of the Act. Ultimately, the objections of the respondent was upheld mainly on the ground that the appellant's mark attracts Sec. (1)(d) of the

Act that the name is a very common personal name in India.

The learned counsel for the appellant contended that VISHNU is the name of Hindu God which is familiarly being used to name the individual

and also to name the trade. When that be so, the reasoning of the Assistant Registrar of Trade Marks that it is a common popular personal name is

not correct and cannot be accepted. Moreover, the respondent did not raise any objection with regard to the similarity of the trade mark including

the trade name with that of their name. When there is no plea with regard to the confusion in the identity of the commodity of the appellants by the

use of the mark sought to be registered, the Assistant Registrar of Trade Marks ought not to have entertained the objections raised by the

respondent.

We have considered the above contentions of the learned counsel for the appellant. As rightly pointed out by the learned counsel for the

appellant, the respondent did not raise any objection with regard to any confusion in the trade.

Their main objection was that the word VISHNU is a common personal name and the use of the same would offend the religious feelings of the

major Hindu community. As already pointed out, the Assistant Registrar did not agree with the respondent's objection with regard to the plea that

the mark would hurt the religious sentiments of the Hindu community. It is seen that the name of Hindu Gods are used as personal

names and they are also commonly used as trade marks. It cannot be said that merely using that name as a trade mark would hurt the religious

susceptibility of Hindus. We therefore, agree with the decision of the Assistant Registrar.

The Assistant Registrar sustained the objection raised by the respondent on the sole ground that the name being a common, popular personal

name and as such, it is barred under Sec. 9(1)(d) of the Act. There is no doubt that the word VISHNU refers to the Hindu God Lord Vishnu

which is also admitted by the respondent. When the name represents the Hindu God's name, then, naturally it would be a common name generally

used by anyone either to name the individual or to name their trade.

When “Vishnuâ€​ is admittedly a common personal popular name among the individuals as rightly pointed out by the Assistant Registrar of

Trade Marks, the registration of such names is totally barred under sub-clause (d) of Sec. 9 of the said Act. Though the learned counsel for the

appellant contended that the device conch with the letter ‘V’ must be taken as a composite mark, we are unable to agree with the same.

The name Vishnu being a popular personal name, naturally, the appellant Cannot be permitted to use the name as a trade mark as the mark is only

proposed to be used. If the name is removed, the device alone cannot form the mark to identify the goods of the appellant. When there is total bar

under clause (d) of Sec. 9 of the Act except upon evidence of distinctiveness, the Assistant Registrar had rightly rejected the registration of the said

mark of the appellant. Hence, we do not find any reasons to interfere with the impugned order of the Assistant Registrar.

Accordingly, the same is confirmed and the appeal is dismissed with no order as to costs.