1. ' The appellants have felt aggrieved against the order of the Deputy Registrar, Trade Marks who has dismissed the objections of the appellants in respect of the word 'TUFF' which was applied for registration as trade mark by the respondent in class 7 for their sewing machines and parts thereof. The appellants have a registered trade mark in the same class in the name of 'PFAFF'. The objection of the appellants before the Registrar was that the words 'PFAFF' and 'TUFF' were similar and they were bound to cause confusion, the objection was under sections 8 and 10 of the Trade Marks Act, 1940.
2. ' The Registrar dismissed the objections on the ground that the mark 'TUFF' is not identical with or nearly resembling the registered mark 'PFAFF' and there was no likelihood of any deception or confusion in the course of trade.
3. ' Mr. Iqbal Qazi, the learned counsel for the appellants has submitted that the phonetic sound of the words 'PFAFF' and 'TUFF' would be almost the same and thus it will cause confusion amongst the intending consumers. He submitted that the appellants had acquired a world-wide reputation for the trade mark 'PFAFF' and therefore, 'TUFF' being similar in the pronunciation should not be allowed to be registered. I do not agree with this submission. The pronunciation of 'PFAFF' and 'TUFF' is quite distinguished from each other. The letter 'P' has a soft sound while the letter 'T' has a harsh sound and therefore, 'P' and 'T' cannot be regarded as identical in their phonetic sound. Since the first letter of both these words is not identical therefore, the confusion or deception should not take place.
4. ' In fact the two words are monosyllables and therefore, in a monosyllable word the beginning of the word is quite important and if the beginning of monosyllable word is different than merely because the last word is identical in sound therefore, on that basis alone the two words could not be regarded as similar in nature. It has been held in PLD 1973 SC 104 that that words "SAIGON" and "DIAGON" are not identical and that there was no phonetic or visual similarity between the two. In 36 R P C 296 the words 'LITO AND RITO' were considered as different from each other. The basis was that the first syllables of a word are most important and therefore, in that case in spite of the fact that the syllable 'ITO' was similar in both those words yet merely because the beginning letter 'L' was different from 'R' therefore, 'LITO' was allowed to be registered in spite of the fact that 'RITO' was already registered as a trade mark in the same class. In the Supreme Court case cited above the marks 'SAIGON' were already registered for sewing machines and yet the word 'DAIGON' was allowed to be registered for sewing machines. Even in this case the only difference is in the beginning of the words and that too only the beginning letter 'S' and 'D' are different otherwise the whole word is the same. In 1965 R P C 347 the words 'MEM' and 'GEM' were not considered as identical and it was held that there was no great possibility of visual confusion of the two marks and that a difference in the first letter of a three words letter cannot involve phonetic confusion if the variation involves a different sound and a different association in the meaning.
5. I have already considered that the words 'P' and 'T' are quite, different in their sounds and there is no association in the meaning in " between 'PFAFF' and 'TUFF'.
6. ' Mr. Iqbal Qazi had relied upon PLD 1978 Kar. 161 where a learned single Judge of this Court had observed that the protection of public against the deception or confusion was to be given wide scope and should not be limited to any kind of confusion. But the ultimate decision in that case was that the word "SONY" which was a registered trade mark in respect of electronic goods of the appellant firm was allowed to be registered as a trade mark in respect of export goods. Therefore, this case has no direct reference to the present case before me.
7. ' Mr. Iqbal Qazi strongly relied upon PLD 1977 Kar. 858 where the words 'VISTAMYCIN' and 'CRYSTAMYCIN' were considered to be deceptive and confusion if read as a whole in respect of the same class of goods, which were antibiotics, on the basis that both visually and phonetically they were likely to deceive and cause confusion in the course of trade. However, that decision was based on the basis that 'V' and 'C' were soft spoken consonants and, therefore, that case is not really applicable to the present case where I have found that 'P' and 'T' are different in their sounds and 'P' is soft spoken while 'T' is harsh spoken. Moreover, in C view of the above-quoted cases PLD 1973 SC 104, 36 R P C 196 and 1965 R P C 347 I am of the view that 'PFAFF" and 'TUFF' are not likely to cause any confusion or to deceive any person.
8. Mr. Iqbal Qazi then argued that section 6(1)(d) does not allow the registration as trade mark of a word which has a direct reference to the character or quality of the goods. This point had not been taken in the objections by the appellants before the Registrar and, therefore, it was not dealt with by the Registrar but since it does not require any factual aspect therefore, I allow the learned counsel to argue the same. However, Mr. Shoukat All had drawn my attention to 1980 CLC 1272 where it was held that if an objection had not been specifically taken in pleadings before the Registrar, Trade Marks then the same could not be allowed to be argued and it was held in that case that the party against which the word 'SOLO' was allowed to be considered as a geographical name was in fact prejudiced because of the lack of that objection in the pleadings. The cited judgment is based on the prejudice having been caused to that party because it may be possible that a party may not be aware of the geographical expressions and, therefore, it was actually prejudiced without having any notice of the same. But in the present case before me the appellants had taken this point specifically in the appeal and, therefore, the respondent had notice of the same and moreover, this was merely a legal point which did not require any consideration of the facts. Consequently I allow the same to be argued.
9. ' Mr. Qazi submitted that the word 'TUFF' exactly sounded like 'TOUCH' which means as stable and durable therefore, it had a direct reference to the quality of sewing machine. He relied upon P L 0 1973 Note 7 at p. 15 ordinary English words, but are mis-spelt, do not thereby become invented words. In that case 'SWEETEX' was considered as directly referring to the quality of the goods involved which were artificial sweetening preparations. However, in that case the mis-spelling was only by the addition of the letters 'EX' after the full word of 'SWEET' and, therefore, it was not a case of mis-spelling like the case of 'TUFF' that we have before us. In the present case Mr.Qazi wants me to first read 'TUFF' as 'TOUGH' on account of the phonetic soundness between the two words and then reach the conclusion that it has a direct reference to the quality of the sewing machines. But the very process of correctly spelling the word 'TUFF' as 'TOUGH' means an indirect approach and, therefore, 'TUFF' cannot have a direct reference to the quality of the goods.
10. ' Mr. Shoukat had drawn my attention to the fact that the word 'TUFF' was itself an English word and, therefore, there was no mis-spelling involved in this case. He referred to Concise Oxford English Dictionary, page 1249 where 'TUFF' is described as meaning rock formed by consolidation of volcanic ashes. His submission was that the word rock was having no direct reference to the quality of a singer machine and one shall have to construe the word rock to a solid reference and this would mean an indirect reference to the stability and durability of a machine. To my mind 'ROCK' would not give the idea to a reasonable person about the quality of a machine and hardly any one would be satisfied with a sewing machine which is described as a rock. Therefore, there is no direct reference to the quality or character of sewing machines by the use of word 'TUFF' when it is considered in the light of its dictionary meaning. Consequently this appeal is not found to be of any merit and is, therefore, dismissed. However, in view of the substantive and serious submissions made by the learned counsel for the appellants there will be no order as to costs.