Kailasam, C.J.

1. This appeal is preferred by Mettur Pharmaceuticals (P) Limited against the judgement of Ganesan J. in A.A.O. 369 of 1966, dismissing the appellants application to register his trade mark.

2. The appellant made an application for registration of a trade mark consisting of the word "ASTHMIX" in Part A of the Register in Class 5 in respect of a designation of goods, which, after an amendment, reads as Pharmaceutical preparation for the treatment of Asthma. A notice of opposition was lodged by the first respondent under Section 21 of the Trade and Merchandise Marks Act, 1958. The main grounds of opposition were that the opponents are the proprietors in India of the trade mark ASMAC registered under C1. 5 in respect of pharmaceutical preparation for the treatment of asthma, that by long and extensive user the said trade mark had become exclusively associated by the trade and the public in India with them and had acquired a great reputation, that the appellants trade mark is deceptively similar to theirs, that the appellants mark did not qualify for registration under Section 9 of theand that in view of the deceptive similarity, the appellants application should be rejected.

3. The Assistant Registrar of Trade Mark found that there was a real tangible danger of confusion in the minds of the public. He also found that this is not a case where registration under Section 12(3) of theshould be given. In the result, he dismissed the application with costs to the opponents.

4. On appeal by the appellant, Ganesan J, while finding that the marks are admittedly not identical, held that there was no visual similarity between the two competing marks and the phonetic test alone has to be applied to this case. In applying the phonetic test the learned Judge found that the persons who may be deputed for buying these medicines are mostly Indians and that their pronunciations of the English words are not likely to be perfect and proper and that these words are likely to be pronounced in various manners differing from State to State and from locality to locality depending upon the language used by the customers and their state of literacy. According to the learned Judge, the chances of confusion will be very little, but the customers are not likely to hail only from the group of literate persons well versed in English language. The learned Judge upheld the conclusion arrived at by the Assistant Registrar that the confusion among the public as regards the trade origin of these competing goods cannot be ruled out. He also held that the appellant is not entitled to registration under Section 12(3) of the. Agreeing with the Registrar, the learned Judge dismissed the appeal.

5. The appellant asked for registration of the mark consisting of the word ASTHMIX in Part A of the Register in Class 5 in respect of "Pharmaceutical preparation for the treatment of asthma." The appellants medicine is packed in folders and bottles covered by a carton. The respondents mark which consists of the word ASMAC is registered in Class 5 in respect of "Pharmaceutical preparation for the treatment of asthma". The packing is in a small carton consisting of 20 tablets, whereas that of the appellant is in folders consisting of ten tablets and in bottles for the liquid form. There is absolutely no similarity and no purchaser, whether intelligent or unwary, could mistake one medicine for the other. This is the finding of the Assistant Registrar, though not in such specific words. After discussing the question of similarity, the Assistant Registrar observed-

"At first blush, I thought that such an objection would not be available to the opponents." *

The learned Judge also found that the marks are admittedly not identical and there is no visual similarity between the two competing marks. We have no hesitation in accepting these findings and holding that there is no similarity whatsoever between the two products. It is also the admitted case of the parties.

6. It was urged that the words are deceptively similar. Section 11 of thestates that a mark, the use of which would be likely to deceive or cause confusion, shall not be registered as a trade mark. Section 12(1) provides that save as provided in sub-section (3), no trade mark shall be registered in respect of any goods or description of goods which is identical with or deceptively similar to a trade mark which is already registered in the name of a different proprietor in respect of the same goods or description of goods. The words deceptively similar are defined in Section 2(1)(d) as a mark shall be deemed to be deceptively similar to another mark if it so nearly resembles that other mark as to be likely to deceive or cause confusion. The effect of Sections 11 and 12 is that the mark shall not be registered, if the use of it would be likely to deceive or cause confusion and the goods are similar. The finding which we have already recorded would rule out any deceptive similarity or any possibility of deception or confusion by use. In spite of this finding, which in fact is not disputed, we would proceed to consider whether the order refusing registration by the Assistant Registrar and the learned Judge should be set aside.

7. The main ground on which the Assistant Registrar, whose opinion was accepted by the learned Judge, refused to register the trade mark is that there is phonetic similarity. The marks are ASTHMIX and ASMAC. At the first blush or on the first impression there could be no difficulty in coming to the conclusion that there is no similarity. But we have been taken through a number of decisions by both sides, each supporting its own stand. It may be frankly stated that it is difficult to deduce any principle of law from these decisions. The decisions have been rendered on the facts of the case and sometimes appear to be irreconcilable. In the circumstances, we would follow the principles laid down in Halsburys Laws of England Vol. 38, Simonds Edn. and by Lord Parker in Pianotist Co. Ltd. Application, (1906) 23 RPC 774. In Halsburys Laws of England, Vol. 38 at page 586, it is stated-

"Thus, in the case of applications for registration of trade marks and in oppositions thereto, the onus is on the applicant to satisfy the Registrar that the trade mark applied for is not likely to deceive or cause confusion." *

As regards resemblance, it is stated that it is a question of fact. The author observes -

"Whether or not any degree of resemblance likely to deceive or cause confusion exists, is a question of fact for the tribunal or court to decide upon the evidence in each case, and is not a matter for witnesses. What degree or resemblance is likely to receive or cause confusion in any instance is incapable of definition of priori and the observations of Judges upon other and quite different facts are usually of little help." *

We resist from getting confused by referring to various decisions which deal with the particular trade mark under contest and would confine ourselves mainly to the facts of the case. In the oftquoted decision Pianotist Co. Ltds Application, (1906) 23 RPC 774, 777 Lord Parker has laid down the tests as follows-

"You must take the two words, you must judge of them, both by their look and by their sound. You must consider the goods to which they are to be applied. You must consider the nature and kind of customers who would be likely to buy those goods. In fact, you must consider all the surrounding circumstances and you must further consider what is likely to happen if each of those trade marks is used in a normal way as a trade mark for the goods of the respective owners of the marks. If, considering all those circumstances, you come to the conclusion that there will be a confusion that is to say, not necessary that one man will be injured and the other will gain illicit benefit, but that there will be a confusion in the mind of the public which will lead to confusion in the goods then you may refuse the registration, or rather you must refuse the registration in that case." *

8. The primary tests are that the words should be judged by their look and by their sound. There is no similarity in the marks by their look in the present case. ASTHMIX and ASMAC in our view are not similar in sound and are not likely to confuse any person. The reason given by the learned Judge is that the person who may buy the medicine such as nurses, compounders and other laymen in charge of the hospital and similar institutions are mostly Indians and that their pronunciations of the English words are not likely to be perfect and proper. It may be stated here that this medicine can be dispensed only on the prescription of a doctor. According to the learned Judge, the customers are not likely to hail only from the group of literate persons well versed in the English language. The learned Judge expressed the view that orders for the drug ASMAC are placed over the telephone and are indistinctly heard over and that written prescriptions are mispelt or badly written. He felt that nurses, compounders and lay people in charge of the hospital and similar institutions may place orders orally or across the counter or over the phone, which may lead to some confusion. With respect, we do not accept these as proper tests. These medicines are schedule H drugs and can only be dispensed on the prescription of a medical practitioner.

Before the Assistant Registrar and the learned Judge, the appellant stated that he would be satisfied if the registration of the word ASTHMIX is confined to the drug which contained any of the drugs mentioned in Schedule H. The question of an innocent and unwary purchaser walking to the shop and purchasing the medicine without a prescription does not arise. The medicine has to be dispensed on the counter on the prescription of a doctor. One can expect a compounder to dispense the medicine properly unless he is grossly negligent, for which contingency the trade mark law cannot give any protection. When a person authorised under the, namely, a doctor, nurse or a compounder deputed by the hospital or similar institutions, goes to a pharmacy for buying the medicines, it is presumed that he or she is sufficiently informed as not to mistake one medicine for the other, and it is farfetched to say that these persons are defective in the pronunciation of the English words so much so that they would mix up between ASTHMIX and ASMAC. We are aware of the fact that in the case of pharmaceutical preparation the court should be careful not to permit any room for confusion. The possibility of confusion is of a normal buyer or even an unwary purchaser and not of fools and idiots.

On a consideration of the entire facts of the case, we are satisfied that there is no deceptive similarity between the two marks. We are also satisfied that the Assn the case of American Cyanamid the petitioner was admittedly claiming a patent in support of a new use for a known substance. There was no dispute in this regard (vide page 507 of the Reports). It is true that some observations have been made that the grant of patent is a good prima facie reason "in the true sense of that term" but in another portion of the judgement it has been said :

"So unless the material available to the Court at the hearing of the application for an interlocutory injunction fails to disclose that the plaintiff has any real prospect of succeeding in his claim for a permanent injunction at the trial, the Court should go on to consider whether the balance of convenience lies in favour of granting or refusing the interlocutory relief that is sought." *

33. It is incumbent on the petitioner, therefore, to make available material to the Court to show that he has a "real prospect of succeeding" in his claim for permanent injunction.

34. The American Cyanamids case also did not hold that a registered proprietor of a patent was entitled to an injunction istant Registrar was in error in refusing to register. It was contended that the decision of the Assistant Registrar should not be lightly interfered with by this court. If two views are possible and the Assistant Registrar has taken one view, the court would be reluctant to interfere with his decision. But in a case where the court is convinced that the Assistant Registrar is in error in refusing to register the trade mark on the ground that there is deceptive similarity between the two marks, it is the duty of the court to interfere. It is not necessary to go into the question whether the mark should be registered under Section 12(3) of the Act, as we are satisfied that its registration is not prohibited by Section 12(1). In the result, the appeal is allowed and the Assistant Registrar is directed to register the trade mark in Part A of the Register in Class 5 as prayed for. There will be no order as to costs.