SABIHUDDIN AHMED, C.J.---This appeal is directed against an order of the Registrar Trade Marks dated 4-1-2003, whereby the appellant's opposition to registration of the trade mark "Cheeta" and device in respect of chemical fertilizer manufactured by the said respondent was rejected.
Basically the case of the appellant appears to be that they have been marketing identical products since 1971 under the trade-mark "Bubber Sher" along with device and have acquired a great deal of respect and credibility in the market for their high quality. The respondent No,2 by using a similar description "Cheeta" for identical goods are attempting to invade the goodwill of the appellants.
2. No specific plea as regards similarity of the device used by the parties was raised. Nevertheless.
Mrs. Amna R. Ahmed, learned counsel for the appellant argued that words "Bubber Sher" and "Cheeta" were so strikingly similar that an ordinary purchaser was bound to be confused. Indeed, learned counsel is correct to the extent that similarity has to be viewed from the context of ordinary purchaser of goods.
3. Mrs. Ahmed, in support of her contention relied upon a judgment of this Court in Crescent Pencils Limited v. Indus Pencil Industries Limited 1989 CLC 2005. In this case the appellants' application for registration of word `Antelope' proposed to be used for ballpoint pen and pencil was rejected on the ground that the respondents were owners of a registered trade-mark 'Deer' in respect of identical goods. His Lordship after reiterating the principle that confusion could be caused by similarity of marks words 'design' and 'device' for the same kind of goods held that test had to be whether confusion or deception could be caused upon a man of ordinary intelligence. Indeed there could be no cavil with the above proposition of law.
4. However, the Court found it possible to uphold the rejection after noticing the similarity of appearance of the two animals and the definition of 'Antelope' appearing in the 20th Century Oxford Dictionary as "any species of the deer like ruminant genus Antelope (Pallas) characterized by Cylindrical, annulated horns, and the possession of a lachrymal sinus, and grouped as 'True Antelope'. On the other hand :Peer' has been defined in the same dictionary as "the general name of a family of ruminant guadrupeds, distinguished by the possession of deciduous branching horns or antlers it appears that the finding was premised on the consideration. That broadly Antelope is also the name of particular specie within the generic family 'Deer'.
5. On the other hand, coming to the facts of the instant case 'Bubber Sher' and `Cheeta' though belonging to the same cat family appear to be completely distinguishable both in terms of appearance as well as the use of the two specious in common parlance. In common parlance a 'Bubber Sher' (lion) has a particular appearance being a very hairy animal completely different from others who might fall in the broad category of `Sher' i,e, a tiger, leopard, panther or a `Cheeta'.
In 21st Century Oxford Dictionary a lion has been described as a large member of the cat family found mainly in Africa with a tawny coat, a tufted tail, and in the male a long thick away or black mane on the head, neck and shoulders. In the same dictionary the word `Cheetah' which has also been adopted in English language, has been described as a large member of the cat family and the fastest land mammal found in Africa and South West Asia, which has a tawny or grey coat and black spots, a small head and very long legs. Possibly the situation could have been different if the appellants owned trade mark of the general expression 'Sher' but I am quite clear that no deception is likely to arise as between the marks 'Bubber Sher' and `Cheeta'.
6. In any event the controversy appears to have been clinched by a subsequent decision of this Court in favour of the appellants themselves relating to the same trade-mark reported as Dawood Hercules v. Registrar Trade Marks 1991 CLC 2307 to which Mr. Tanveer Ashraf, learned counsel for respondent No,2 drew my attention. In this case the appellants' application for registration of the aforesaid trade mark was refused on the ground that the device of lion had been declared common to the trade by a Notification dated December, 1, 1977, and the Registrar found that the appellants were unable to establish any distinctiveness in terms of section 6(1)(e) of the Trade Marks Act, 1940. Upholding the appellants' contention, this Court held that the device of a lion in combination with the words 'Bubber Sher' rendered it distinctive in terms of section 6(1)(e) of the said Act and, therefore, the Registrar was not justified in refusing the application for registration.
Indeed, the appellants could not be allowed to a probate and reprobate and having acquired the right to registration of a trade-mark on the hypothesis that the 'Bubber Sher' was completely distinguishable from lion could not assert that any other mark relating to the same family, even a cheetah, was not registerable. It is extremely unfortunate that having urged distinctiveness on the basis of the word 'Bubber Sher' they now intend to monopolize the trade by opposing registration even of a remotely similar trade mark.
7. The appeal is, accordingly, dismissed with costs.