134-NLR-NLR-V-57-S.-H.-M.-MOHIDEEN-et-al-Petitioners-and-REGISTRAR-OF-TRADE-MARKS-Respondent.pdf

The Registrar refused the application on the ground that he was precludedby the terms of section 17 of the Trade Marks Ordinance from registeringthe appellants’ t-rado mark as it so nearly resembled a registered trademark in respect of the same class of goods (hereinafter referred to as theregistered trade mark) belonging to a firm trading under the name ofT. V. K. Cader Meera Saibo & Co. as to be calculated to deceive.
The registered trade mark as shown in the illustration given belowdepicts two bearded goats with curved horns standing almost erect on abox or stand with the legend “ Marque Deposse ”. On the heads of thegoats rests a circle with a lotus device with the capital letters “SIT” inthe centre.

The appellants appealed under section 10 (3) of the Trade MarksOrdinance from the Registrar’s decision to the District Judge. The learned
District Judge upheld the Registrar’s decision that the appellants ’ trademark so nearly resembled the registered trade mark as to be calculatedto deceivo..
Before deciding the question whether the appellants’ trade mark sonearly resembles the registered trade mark, it is necessary to decide themeaning of the words “ calculated to deceive ” in section 17 of the TradeMarks Ordinance. These words are identical with the words in thecorresponding provision of the English Trade Marks Act of 1905 and thedecisions on that Act afford some guidance in the interpretation of thosewords in our Act. It has been held in England that the word“calculated” in the context “ calculated to deceive” does not implyany intention to deceive and means no more than “ likely ”. Thequestion then is whether the appellants’ trade mark is likely to deceive.
Apart from the two gambolling rams and the words “ TWO RAMS ”there are no other features in the appellants’ trade mark while the regis- ■tered trade mark has many features which are not to be found in theappellants’ trade mark. The registered trade mark has a bold outlinewithin which the two goats are placed. The features of the two goats arcentirely different from those of the animals in the appellants’ trade mark.The lotus design with the lcttei’S “SIT ” on the- registered trademark is not to be found in the appellants’ trade mark and is a distinctivefeature of it. The stand or box on which the goats are standing ispeculiar to the registered trade mark and even the attitude of the goatsIia it is different.
No standard test of what is likely to deceive the purchaser can be laiddown. The tests laid down in the decided cases are rarely capable ofextension to other cases. In the circumstances of this case we think thetest to apply is not whether if a person is looking at the two trade marksside by side there would be a possibility of confusion ; but whether theaverage person who sees the appellants’ trademark in the absence of theregistered trade mark and in view only of his general recollection of theregistered trade mark would mistake the appellants’ trade mark for theregistered trade mark. With all these marked differences no customeris likely to mistake the appellants’ trade mark for the registered trademark. The appellants have not taken into their trade mark anydistinctive feature of the registered trade mark.
For the above reasons we are unable to agree with the learned DistrictJudge that taken as a whole the appellants’ trade mark so nearly resemblesthe trade mark already registered as to be likely to deceive the purchaser.
We therefore set aside the order of the learned District Judge and ofthe Registrar. There will be no costs of this appeal.
Pgxle, J.—I agree.
Order set aside.
1954Present : de Silva, J.
A. D. P. RANASENGHE, Appellant-, and H. A. R. PIERIS, RespondentS. G. 33—G. R. Gampaha, 5,438
Appeal—Security for costs of appeal—Procedure for. furnishing it—Civil ProcedureCode, S3. 750 (/> and (3), 757.
A notice of security for costs of appeal given in terms of section 756 of theCivil Procedure Code is not invalid if the amount of security is not specified in it.
Where the security bond was perfected upon its acceptance by an officerof the court and before the security was accepted by the Judge—
Held, that the provisions of sub-section 3 of sect ion 756 of the Civil ProcedureCode could not bo invoked to cure the defect.
J^PPEAL from a judgment of the Court of Requests, Gampaha.
N.K. Choksy, Q.C., with A. IV. Goone.warde.ne and John de Saram, forthe defendant appellant.
H. W. Jayetvardene, Q.G., with P. Ranosinghe, for the plaintiffrespondent.
Cur. adv. vult.
October 21, 1954. de Silva, J.—
This is an appeal from the judgment of the Commissioner of Requests,Gampaha, declaring the plaintiff respondent entitled to a decree forrent, ejectment, and damages. The judgment was delivered on 22ndOctober 1952. The defendant filed this appeal 2 days later. Along withthe petition of appeal he deposited a sum of Rs. 26 as security for costs ofappeal.
A preliminary’objection was taken to the hearing of this appeal on theground that it was not properly constituted inasmuch as the provisionsof Section 756 had not been complied with. Firstly it was contendedthat the notice of appeal was not a valid one as the amount of securitywas not specified in it. This objection was raised in the court belowalso, but the learned Commissioner held that it was not essential tospecify the amount of security in the notice. The Civil Procedure Codeprovides a specimen form for the purpose of giving notice of security.That is form 126. It is contended on behalf of the appellant that thisform has not been complied with. The relevant part of this form reads
“move to tender security by (mention how) for any costs
which may be incurred by you in appeal in the premises etc. ” Mr. Jaya-wardene argues that the words “ mention how ” appearing in this formrequire the insertion of the amount of security proposed to be given.
I do not think that that interpretation is the only one which can boassigned to these words. It certainly is desirable and convenient tomention the amount of security to be furnished. Section 757 of the CivilProcedure Code provides that security may be given in 2 ways, that is tosay, by way of mortgage of immovable property or -by the deposit and? hypothecation of money. The word “ how ” appearing in form 126 maytherefore refer to the form of security, namely, property or money. Inthe instant case it was set out in the notice that security would be
tendered by depositing cash. X am satisfied that is sufficient compliancewith the requirements of form No. 126. It is conceded by therespondent’s counsel that the sum of Its. 26 tendered as security is t-liomaximum security required in the Court of Requests, Cfampaha, in thisclass of cases.
The 2nd objection urged by Mr. Jayawardene was raised in appealfor the first time. He maintains that the security bond was perfectedeven before notice of security was served on his client and before thesecurity was accepted by the court. The date of the bond is 24.10. ’52whereas the notice of security was served on the respondent and hisproctor only on the 2Sth and 29th October respectively. Section 756of the Civil I?rocedure Code provides that when a petition of appeal isreceived by the court the petitioner shall forthwith give notice to thoi-espondent that ho will, on the date specified in such notice within aperiod of 14 days from the date of decree, tender security for the respon-dent’s costs of appeal. On the day specified, the respondent is entitledto show cause if any against the acceptance of such security. Thosecurity has to be perfected within 14 days of the date of decree. It isclear that the security can be accepted only after notice of security isserved on the respondent. Mr. Choksy who appears for the appellantwliile conceding that the security bond had been perfected before thenotice of security was sorved, argued that he was entitled to relief undersub-section 3 of Section 756 of the Civil Procedure Code. This sub-sectionreads “ In the case of any mistake, omission or defect on the part of anyappellant in complying with the provisions of this section, the SupremeCourt, if it should bo of opinion that the respondent lias not beenmaterially prejudiced may grant relief on such terms as it may deemjust”. The point which arises in this case came up for consideration in theDivisional Bench Case de Silva v. Seenathamma h In that case securitywas accepted before notice of security had been served on one of the tworespondents. In appeal it was contended on behalf of the respondentthat the security was bad inasmuch as it had been accepted before thenotice of security had been served on one of the respondents. It wasurged on behalf of the appellant that he was entitled to relief under sub-section 3 of Section 756 of the Civil Procedure Code. Soertsz J. whowrote the judgment in that case held that two of the requirements ofSection 756 namely the giving of notice forthwith, and the furnishingof the copy of appeal were matters immediately in the power of the appel-lant and that the court had no power to grant relief under sub-section 3for a breach of either of those two matters. He further held that reliefmay be given in case of “ reasonable ” omission, mistake or defect inregard to the tendering of security and the depositing of money to coverthe expenses of the service of notice of appeal. In the circumstancesof that case relief was in fact granted to the appellant but he proceededto state “ But I think we should state quite clearly that our decision inthis case does not mean in future cases we shall, necessarily, give relief,in similar circumstances. ”
In the instant case a further difficulty arises, namely, that the securitybond was perfected before security was accepted by the court. As I
i 41 JV. L. It. 941.
observed earlier the petition of appeal was filed on 24.10.’52 and theappellant moved for a deposit note for Us. 26 and that motion was allowed.On the same day there is a journal entry which shows that the securitybond was filed. This shows that the security bond was perfected withoutthe authority of the court. The fact that the application for a depositnote of Rs. 26 was allowed does not mean that the court accepted thatamount as security. In the case of the Demodera Tea Company Ltd.v. Pedrick Appu1 De Sampayo J. said, “ It is clear that the acceptance ofthe security is a judicial act and should be evidenced by an order ofcourt. ” In this case too, an officer of the court appears to have acceptedthe security bond without an order from the Commissioner of Requests.That bond therefore would bo unenforceable. The provisions of sub-section 3 cannot bo invoked to cuie that defect. The appeal musttherefore be rejected. I make no order for costs in favour of the 'plaintiff respondent as the objection on which he succeeds was not raisedin the court below.
Appcal rejected.