Corn Products Refining Co. vs Shangrila Food Products Ltd. 1959 AIR 1960 SC 142
FACTS
The appellant is a corporation which had registered the mark “Glocovita” under the Trade Marks Act, 1940, in respect of a substance used as food or as an ingredient in food containing glucose powder mixed with vitamins. Seven years later, the respondent, a manufacturer of biscuits, made the application for registration of the mark “Gluvita” and it agreed to limit the registration only to biscuits. The appellant opposed the respondent’s application.
PROCEDURAL HISTORY
On appeal the Deputy Registrar held that the respondent’s proposed trade mark registration could not be refused because, firstly, biscuits were not goods of the same description as glucose powder mixed with vitamins.
Secondly, the words “Glucovita” and “Gluvita” were not visually or phonetically similar. On Appeal to the Bombay High Court, the court set aside the Deputy Registrar’s order and held that the respondent’s mark could not be registered.
The Respondent appealed in the same High Court, which held that its mark cannot be refused to register. The appellant finally appealed to the Supreme Court.
ISSUE
Whether the goods are of the same description as glucose powder mixed with vitamins in the two products was in the same class?
Whether the words ‘Glucovita' and ‘Gluvita' were not visually or phonetically similar and that there was no reasonable likelihood of any deception being caused by or any confusion arising from, the use of the respondent's proposed mark?
HELD
The mark ‘Glucovita' has acquired a reputation among the general buying public.
Though the goods are not of the same description but there is evidence that glucose is used in the manufacture of biscuits. That would establish a trade connection between the two commodities, namely, glucose manufactured by the appellant and the biscuits produced by the respondent.
An average purchaser would therefore be likely to think that the respondent's ‘Gluvita biscuits' were made with the appellant's ‘Glucovita' glucose. Biscuits containing glucose are manufactured with liquid glucose whereas the appellant's mark only concerns powder glucose. We will assume that only liquid glucose is used in the manufacture of biscuits with glucose.
But there is nothing to show that an average buyer knows with what kind of glucose, biscuits containing glucose are or can be made with. That there is trade connection between glucose and biscuits and a likelihood of confusion or deception arising therefrom would appear from the fact stated by the appellant that it received from a tradesman an enquiry for biscuits manufactured by it under its mark ‘Glucovita'.
The tradesman making the enquiry apparently thought that the manufacturer of ‘Glucovita' glucose was likely to manufacture biscuits with glucose; he did not worry whether biscuits were made with powder or liquid glucose. The commodities concerned in the present case are so connected as to make confusion or deception likely in view of the similarity of the two trade-marks.
‘Glucovita' has acquired a reputation among the general buying public. The marks with which this case is concerned are similar. Apart from the syllable “co” in the appellant's mark, the two marks are identical. That syllable is not such as would enable the buyers in our country to distinguish the one mark from the other.
Again, in deciding the question of similarity between the two marks we have to approach it from the point of view of a man of average intelligence and of imperfect recollection. To such a man the overall structural and phonetic similarity and the similarity of the idea in the two marks is reasonably likely to cause a confusion between them.
RULE
To determine the question of likelihood of deception or confusion between the identity of two competing marks or their close resemblance, the trade connection test should be applied.
Therefore, a trade connection between glucose and biscuits would appear to be established as a result of which, the commodities concerned are so connected as likely to create confusion or deception in view of the similarity of the two trademarks.
The Court said that the two marks are so similar so as to cause confusion to the public and hence allowed the appeal.