- Case number
- (T)CMA(TM)/108/2023
- Court
- Madras High Court
- Date of judgment
- Judge
- Senthilkumar Ramamoorthy
- Outcome
- Set aside
Headnote
Refusal under sections 9 and 11(1)(a) set aside. Section 11(1) applies only where the mark applied for is identical or similar to an earlier mark and the goods or services are identical or similar. Here there was some similarity between the marks but the goods were not identical, the applicant's mark being for skin care preparations and the cited mark for a rust and stain remover used on stainless steel surgical instruments. Whether goods are similar cannot be decided merely by reference to the class in which the application is filed: goods within the same class may be different and goods in different classes may be similar. The determination takes account of multiple factors, including whether the goods can be used as substitutes, whether they are directly complementary, their origin and their intended purpose. The goods being dissimilar, section 11(1) had no application, and registration could be refused on that footing only if the proprietor of the earlier mark established that it is well known and that section 11(2) is satisfied. The absolute grounds relied on had not been raised in the examination report at all, and a mark must be compared as a whole rather than split into its components.
Headnote by BRB Legal, written from the judgment: a summary for reference, not legal advice. Read the judgment itself before relying on it.