H. L. ANAND, J.

(1) THE principal question that this appeal under Section 109 (2) of the Traders and Merchandise Marks Act, 1959, herein after called "the Act", raises is as to whether the marks consisting of the word platinum per se, in respect of years and threads would qualify for registration under Section 9 of the Act in Part A or Part B of the Register and in particular whether the said mark could be said to be descriptive of the character or quality of the goods.

(2) ON June 11, 1969, the appellant herein sought the registration of the mark consisting of word platinum per se in class 23 in respect of yarns and threads by their application No. 257347 which was refused by the learned Assistant Registrar, Trade Marks, Delhi by an order of June 3, 1970 and on the grounds set out by him, on a request on Form TM-15, in his order of June 27,1970.

(3) THE registration of the aforesaid mark was turned down on the ground that it did not contain any of the requisites for registration either in Part A or B of the Register under Section 9 of the Act inasmuch as the word constituting the mark denoted a certain colour associated with the metal Platinum and would thus be descriptive of the character or quality of the goods. The registration of the mark in Part B of the Register was also declined on the ground the mark being one which was proposed to be used, it could not be said to be distinctive "in the absence of any evidence of user. "

(4) AGGRIEVED by the aforesaid refusal, the appellant has come up in appeal.

(5) SHRI K. G. Bansal, learned counsel for the appellant assailed the impugned order on the ground that the mark consisting of the word platinum perse could not be said to be descriptive either of the character or quality of the goods having regard to its ordinary meaning as understood by the common man in India. Learned counsel contended that the learned Assistant Registrar grossly erred in holding, on the basis of the dictionary meaning of the word platinum, that it indicated platinum colour or gray colour and that, therefore, the mark would be descriptive of the character or quality of the goods and argued that in considering whether a particular word was descriptive of the character or quality of the goods, regard must be had to the ordinary meaning of the word as understood by the common man and not as conceived by lexicographers or known to the educated class of people. He further contended that the meaning to be attributed to the term must be that which is understood by the public at large and not necessarily its grammatical meaning and argued that the word platinum in its ordinary meaning only represented a metal and did not denote in common parlance any colour which may resemble the colour of that metal and placed reliance on the cases of Sulekha, AIR 1962 Bombay 82 and Solid 15 (1898) R. P. C. 476.

(6) ON the other hand, Shri R. L. Tandon, learned counsel for the respondent contended that one of the dictionary meanings of the terms platinum clearly indicated a colour and the word would, therefore, be clearly descriptive of the character or quality of goods or would in any event indicate the superior quality of the goods in the sense in which platinum is considered as the superior metal and at times is used to describe a valuable or costly material and placed reliance on the case of Rasoi. AIR 1955 Calcutta 519 and of Pirle 15 (1898) R. P. C. 151. Learned counsel justified the refusal on the additional ground that the word platinum was neither distinctive nor could otherwise form subject matter of a trade mark, being a ordinary word of the language of which no monopoly could be given any applicant for registration. It was further contended that in any event, even if the mark sought to be registered by the appellant, satisfied the requirement of Section 9 of the Act and may be held to have acquired the requisites for registration, that, by itself, did not entitle the appellant to the registration because Section 18 (4) of the Act still gave a discretion to the Registrar to grant the application or refuse it.

(7) AS would be apparent from the preamble to the Act, it was intended to provide for the registration and better protection of trade marks and for the prevention of the use of fraudulent marks on merchandise. The Act is, by and large, based on the provisions of the English Act of 1938. The law relating to trade marks is based on the imperative to prevent the deception of the public by the offer for sale of goods as possessing some connection with the particular trade which they did not in fact have and is a legislative recognition that such a deception was a civil wrong giving a cause of action to the trader against the perpetrator of the deception. It was, therefore, intended to provide a two fold protection one, to the owner or the rightful user of the trade mark and the other, the buyer of the goods. The leading principle was first described by James L. J. in Single Manufacturing Co. Vs. Look, 1980,18 Chancery Division 395 at page 412, thus:-

"no man is entitled to represent his goods as being the goods of other man; and no man is permitted to use any mark; sign or symbol device or means whereby, without making any false representation to a purchaser who purchases from him, he enable such purchaser to make a false representation to somebody else who is the legitimate customer. That being, as it appears to me, a comprehensive statement of what the law is upon the question of trade mark or trade designation, I am of the opinion that there is no such nature as monopoly or a property in the nature of copy right or in the nature of a patent in use of any name. Whatever name is used to designate goods, anybody may use that name to designature goods, always subject of this, that he must not, as I said, make, directly or through the medium of any other person, a false representation, that is goods are the goods of another person. "

(8) THE need for such a duel protection is all the more in a developing country like India and the under developed world because the mass of people in such countries belong to the illiterate, uneducated or the semi-educated class who would not be able to distinguish the product of a manufacturer by the name of the manufacture and would have to depend on some sort of a mark whether consisting of a name, a word, a device or a representation with a view to distinguish the goods of a particular manufacturer, in which they may be interested, from those of the others, and the chances of deception, particular of the ordinary man with average intelligence and imperfect recollection, are almost proverbial in such societies.

(9) SECTION 18 of the Act lays down the procedure for the application for registration and sub-section (4) provides that "subject to the provisions of this Act, the Registrar may refuse the application or may accept iabsolutely or subject such amendments, modifications, conditions or limitations, if any, as he may think fit. " Section 9 of the Act, which though drafted in the negative form, contains the requisites for registration in parts A and B of the Register maintained by the Registrar of Trade Marks and is in the nature of a restrictive provision runs thus:

"9. (1) A trade mark shall not be registered in Part A of the register unless it contains or consists at least one of the following essential particulars, namely :- (a) the name of a company, individual or firm represented in a special or particular manner; (b) the signature of the applicant for registration or some predecessor in his business; (c) one or more invented words; (d) one or more words having no direct reference to the character or quality of the goods and not being, according to its ordinary signification, a geographical name or a surname or a personal name or any common abbreviation thereof or the name of a sect, caste or tribe in India; (e) any other distinctive mark. (2) A name, signature or word, other than such as fall within the descriptions in clauses (a), (b), (c) and (d) of sub-section (1) shall not be registrable in Part A of the register except upon evidence of its distinctiveness. (3) For the purposes of this Act, the expression (distinctive" in relation to the goods in respect of which a trade mark is proposed to be registered, means adapted to distinguish goods with which the proprietor of the trade mark is or may be connected in the course of trade from goods in the case of which no such connection subsists either generally or, where the trade mark is proposed to be registered subject to limitations, in relation to use within the extent of the registration. (4) A trade mark shall not be registered, in Part B of the register unless the trade mark in relation to the goods in respect of which it is proposed to be registered is distinctive, or is not distinctive but is capable of distinguishing gods with which the proprietor of a trade mark is or may be connected in the course of trade from goods in the case of which no such connection subsists, either generally or, where the trade mark is proposed to be registered subject to limitations, in relation to use within the extent of the registration. (5) In determining whether a trade mark is distinctive or is capable of distinguishing as aforesaid, the tribunal may have regard to the extent to which - (a) a trade mark is inherently distinctive or is inherently capable of distinguishing as aforesaid; and (b) by reason of the use of the trade mark or of any other circumstances, the trade mark is in fact so adapted to distinguish or is in fact capable of distinguishing as aforesaid. (6) Subject to the other provisions of this section, a trade mark in respect of any goods - (a) registered in Part A of the register may be registered in Part B of the register; and (b) registered in Part B of the register may be registered in Part A of the register; in the name of the same proprietor of the same trade mark or any part or parts thereof. "

(10) THE Section generally follows the provisions of Sections 9 and 10 of the English Act of 1938 and differs from the corresponding provisions of Section 6 of the Indian Act of 1940, inter alia, in that sub-section (4) of Section 9 of the Act, which contains statement of requisites for registration in Part B, in new, and sub-section (5) deals with the question of distinctiveness necessary for registration in Part A and capability of distinguishing requisite for registration in Part B of the Register.

(11) BROADLY speaking, it would be correct to say that having regard to the provisions of Section 9 and its legislative history as indeed the scheme of the Act, particularly the provisions of sub-section (4) of Section 18 of the Act that Section 9, though worded in negative form, lay down the requisites for registration in Parts A and B of the Register and is purely restrictive as indeed are the corresponding provisions of the English, Act of 1938 and intended, as it were, to,limit and curtail the numerous words and other marks, which before this Act and before the English Act of 1938, were being appropriated as trade marks and that no mark could be put on the Register in Parts A and B under the Act unless it complied with one or other terms of the Section although it is well settled that the presence in any mark of one or more of the specified requisites would not necessarily entitle the applicant to the registration of it and this is so because the provisions of sub-section (4) of Section 18 would indicate that the Registrar had some discretion, though its exercise would be regulated by rules of judicial discretion, to allow or refuse a registration even though one or the other of the requisites may be satisfied.

(12) THE Section can be conveniently divided into two parts. The first part consisting of sub-sections (1), (2) and (3) deals with registration in Part A of the Register and the second part consisting of sub-section (4) deals with registration in Part B of the Register. Sub-sections (5) and (6) seem to be common to the two parts. The conditions requisite for the registration of a mark in the two parts of the Register as well as the relief to which the owner of the said marks would, in an infringement action, be entitled are clearly distinguishable by virtue of the provision of the Section and Section 29 (2) of the Act.

(13) DEALING with the first part of the Section, it would appear that a trade mark to be considered for registration in Part A of the Register must have one of the various requisites mentioned in clauses (a) to (e) of sub-section (1) of Section 9 and since no claim to such requisite has been made in the present case with reference to clauses (a), (b) and (c), but has been confined to clauses (d) and may possibly be justified with reference to clause (e), it would not be necessary to discuss the first three clause. It may, however, be pointed out that the various clauses of sub-section (1) which give the essential particulars, one of which must be possessed by a mark before it could be considered for registration, are independent of each other so that in construing one clause, the scope of the other clauses may be material but the fact that the mark does not qualify in one clause will not prevent its possessing the requisites provided by another clause and a mark may also likewise qualify under one or more of these clauses so far as the first part is concerned, leaving out the first three clauses of sub-section (1), a mark would not qualify for registration in Part A of the Register, unless it neither has one or more words having no direct reference to the character or qualify of the goods and not being according to its ordinary signification, a geographical name or a surname of a personal name or any common abbreviation thereof or the name of a sect, caste or tribe in India (d) or having any other distinctive mark (e). Sub-section (2) of this Section further provides that a name, signature or word which may not qualify under any of the clauses (a), (b), (c) and (d) of sub-section (1) may still be registered "upon evidence of its distinctiveness". Sub-section 3 of this Section defines the expression "distinctive" as meaning "adapted to distinguish goods with which the proprietor of the trade mark is or may be connected in the course of trade. "

(14) THE second part of the Section, which deals with Part B of the Register, consists of sub-section (4) which provides that the mark shall not be registered in Part B of the Register unless the trade mark in relation to the goods in respect of which it is proposed to be registered "is distinctive or is not distinctive but is capable of distinguishing goods with which the proprietor of a trade mark is or may be connected in the course of trade. "

(15) SUB-SECTION (5) of the said Section which would appear to qualify both the parts of it, lays down a test for determining the distinctiveness of a mark or its capability of distinguishing and provides that in determining whether a trade mark is distinctive or is capable or distinguishing, the tribunal may have regard to the extect to which "a trade mark is inherently distinctive or is inherently capable of distinguishing" and by reason of the use of the trade mark or of any other circumstances, "the trade mark is in fact so adapted to distinguish or is in fact capable of distinguishing as aforesaid. "

(16) IT would be apparent on a comparison of the two parts of this Section that so far as registrability is concerned, the differences between Part A and B are:

(1) that in the former the mark must be "adapted to distinguish", and in the latter "capable of distinguishing" (the context being virtually identical); and (2) that in the case of names, signatures or words which do not fall within paragraphs (a) to (d) of Section 9 (1), so that registration in Part A can only be granted upon evidence of distinctiveness, such evidence is not required for Part B if it is possible without evidence to satisfy the tribunal that the mark is "capable of distinguishing the goods. "

(17) THE question that requires consideration is whether the mark in this case would be said to have any requisite for registration in Part A of the Register and the answer to the question, to my mind, must be in the affirmative.

(18) THE registrability of the mark in,part A of the Register was claimed by the appellant before the learned Assistant. Registrar, as indeed before this Court, on the ground that it had the requisite provided in clause (d) of sub-section (1) of Section 9 and may perhaps be also justified with reference to clause (e) of the said sub-section.

(19) FOR the purpose of registrability under clause (d) of sub-section (1) of the Section, the mark must satisfy the following requirements:

(i) it must not be one of the expected names; and (ii) if consisting of a word, it should not have a direct reference to the character or quality of the goods.

(20) IN the present case, it is not disputed that themark does not contain any of the expected names and the first question, therefore, would be whether the word "platinum" could be said to have no direct reference to the character or quality of the goods and this is a question that, to my mind, must be answered in the affirmative because although the learned Assistant Registrar is correct when he says that one of the dictionary meaning of the term "platinum" is platinum colour or certain shade resembling that of platinum, the learned Assistant Registrar ignored that for the purpose of registrability as indeed for the purpose of determining infringement of a trade mark under the Act, the mark or the word of which it is constituted, must be given not only its ordinary popular meaning but must also be considered from the point of view of the reaction to such a mark of word of the proverbial common man with average intelligence and imperfect recollection and not how a lexicographist or a highly educated person would understand or react to it and so construed, it is not possible to hold that the word platinum would indicate any colour. The common man of average intelligence would associate with the word a valuable metal and that being so, it could not be said that the word platinum would have direct reference to the character or quality of the goods in relation to which the mark is sought to be registered. Platinum has not so far become one of the popularly known natural colours in the sense in which white or black are known even though a grey colour of a particular shade may, for want of exact terminology, be described among the educated elite or the discerning as platinum grey or platinum White because of the similarity of such colour to the colour of the rare metal. If the word platinum is, for this reason, to be treated as a known colour, every metal or other object having a distinctive colour, which may be a slight variation of a popularly known colour, would also be treated a colour or denoting a colour. Such a process to give an unusual meaning to a known word having distinct popular meaning does not appear to me to be justified.

(21) THE contention, that the word platinum would denote the best or superior object because the metal of that name is both rare and valuable is untenable for the same reason. The conclusion of the learned Assistant Registrar that the word may be understood to indicate that "the thread, bearing the mark, was a platinum thread/to say the least, has no foundation because it was no bodys case that the mark was sought to be used in relation to platinum thread.

(22) REFERENCE to decided cases on the subject is not of much assistance in the determination of the question whether a particular word is descriptive of the character and quality of the goods because most of these do not lay down any principle or standard for such determination. The cases are more illustrative than determinative although some of these do indicate the extent to which courts have gone in construing the expression "direct reference to the character and quality of the goods. "the question whether a particular word is or is not descriptive of the character or quality of the goods must, therefore, be answered on the true construction and assessment of the word in each case.

(23) THE case of Sulekha, AIR 1962 Bombay 82, on which reliance was placed on behalf of the appellant, is an authority for the proposition that in considering whether a particular word was or was not descriptive of the character or quality of the goods, regard must be had to its popular meaning and it was not open to given an artificial meaning to the term either by splitting the words into two parts and finding out the meaning of the such parts from several dictionaries and then attributing the meaning to the word. The Bombay High Court was concerned with the word "sulekha" and the contention that the word "sulekha" was a combination of two words "su" and "lekha" meaning good writing and, therefore, was descriptive of the character or quality of the goods i. e. , pens and pencils, was dispelled on the ground that the popular meaning of the word "sulekha" was only to the Registry to split the word into two parts, see the meaning of the two parts in various dictionaries and hold that, so construed, the meaning of the term "sulekha" was good writing which being descriptive of the quality and character of the pen or pencil would not entitle the mark to registrability in Part A of the Register.

(24) IN the case of Rasoi, AIR 1955 Calcutta 519, the High Court was concerned with the question whether the word "rasoi" qualified for registration under Section 6 (1) (d) of the Act of 1940 corresponding to Section 9 (1) (d) of the present Act. The matter had been heard by the Division Bench consisting of the Honble the then Chief Justice and Justice S. R. Dasgupta and the matter was referred to the learned third Judge on a difference of opinion between the Bench on the question whether the word "rasoi", when used as a mark for the hydrogenated ground nut oil, had a direct reference to the character or quality of the goods. The learned Judge came to the conclusion that, having regard to the true meaning of the term "character and qualify", the word "rasoi" would be descriptive of the character and quality of the goods, in that "rasoi" ordinarily meant cooking and there was, therefore, direct reference to the description or the character of the hydrogenated oil although the learned Judge returned the finding that the word "rasoi" would not be distinctive and in any event, the word would not qualify for registration because it w a common word of the language of which no monopoly could be granted to a particular frader.

(25) IN the course of the Judgment, the learned Judge traced the legislative history of the Section and pointed out that in the Act of 1885, which proceeded the Act of 1905, the word "direct" was not there in the corresponding provision and concluded thus:

"it thus appears that the word "direct" was introduced by the Act of 1905. The reason for this addition was to give effect to the view taken by the House of Lords in the case of - eastman Photographic Materials Co. s Application, (1898) AC 571, known as the solio Case that simply because the word solio suggested the sun, it could not be said that the word solio had some reference to the character of the photographic paper known as solio. It is true that the introduction of the word direct show that the mere fact that the word mark has some reference to the goods does not render it incapable of registration. The reference must be a direct one. A mere suggestive reference is not sufficient. In the present case the mark "rasoi" as I have already stated, directly refers to the character of the goods which are used ordinarily for cooking purposes. "

(26) IN the case of Pirle, 15 (1898) R. P. C. 151, the question before the High Court of Justice, Chancery Division, was whether the word pirle should qualify for registration and the application was turned down on the ground that the word "pearl", having been rejected before and there being no appeal against that order and the rejection having thus, become final, pirle could not be allowed to be registered because of the inherent similarity to the word "pearl". The order was upheld by the Court of Appeal and it was observed that it could not be said that man may register any word which sounds exactly like a word "that could not be registered. " It may, however, be pointed out that this case would not be an authority for the proposition that the word "pearl" would not qualify for registration because it was descriptive of the character or quality of the goods because, as pointed out in the original order, the question whether "pearl" would qualify for registration or not was not before the Court because the application for registration of "pearl" having been rejected and there being no appeal against it, the question was not considered and it was particularly pointed out:

"i am not now asked to consider whether the word "pearl" is capable of registration or not. I wish to say nothing on that point, because it may be competent to the Applicants to bring forward that word again, and it may have to been considered on the grounds mentioned in the affidavits before me, or on other grounds and when it has to be considered, it is right, of course, that that should be done without any prejudice from what happens on the present occassion. "

(27) IN the case of "solio", 15 (1898) R. P. C. 476, which was relied upon on behalf of the appellant, the question was as to the registrability of the word "solio" in relation to photographic paper. The plea for registration was turned down by the Comptroller General on the ground that it was not the policy of the patent office to permit registration of any word indicating the Sun, in connection with such goods. On a reference to the Court it was held that (1) unless there was a manifest error, it was not convenient to reverse the practice and (2) the word would be understood to refer to the Sun, and as applied to the said goods, it could not be said that the word had no reference to their character and quality. On appeal, the Court of Appeal upheld the refusal on the ground that (1) the word was an invented word and (2) as applied to the said goods, it had some reference to the character and quality of the goods. On further appeal to the House of Lords it was held that (1) an invented word may be registered even though having a reference to the character and quality of the goods because sub-section (d) and (e) of Section 10 of the Act of 1888 were to be construed as distinct and independent and (2) the word had no reference to the character and quality of goods. Referring to the argument that the word "sol" may be understood to mean "sun" as the word "sol" was attributed by Shakespeare to our planet and, therefore, "sol" may be descriptive of the character or quality of the goods. Lord Chancellor observed as follows:

"my Lords, my answer it that "solio" is not "sol" and "sol" is not "solio". It certainly is a very strange thing that you should take three letters out of a word, and by the somewhat circuitous process that has been adopted here, arrive at the conclusion that it is not an invented word, and that it does not describe the character and quality of the goods. My Lords, I desire to give my opinion with reference to the particular word, and not to go behind it. "

(28) I am, therefore, of the view that, having regard to its ordinary popular meaning, the word platinum could not be said to be descriptive either of the character or the quality of the goods with reference to which it is sought to be registered and the test that I have applied in determining the question would be amply supported by decisions in the cases of rasoi (supra) sulekha (supra) and the solio (supra) and would not appear to militate against the decision in the case of pirle (supra), in which the question whether pearl would be descriptive of the character or quality of the goods was clearly left open. The learned Assistant Registrar was, therefore, clearly in error in refusing registration on the ground that the mark consisting of the word platinum could be said to be descriptive either of the character or quality of the goods in question.

(29) THE decision of the learned Assistant Registrar with regard to the registrability of the mark in Part B of the register is equally erroneous because the registration in Part B of the Register has been turned down for the same reason for which registration in Part A was refused i. e. the alleged descriptive nature of the word platinum and I have already held above that the word platinum could not be said to be descriptive either of the character or the quality of the goods in question.

(30) SHRI R. L. Tandon, learned counsel for the respondent sought to justify the refusal of registration both in Part A and B of the Register on the grounds that the word platinum could not be said to be distinctive and being an ordinary word of English language, no monopoly could be given to any applicant of such a word.

(31) ON this aspect of the matter, the questions that require consideration are:

(a) Whether a mark, which would qualify for registration in any of the clauses (a) to (d) of sub-section (1) of Section 9, must in addition be distinctive within the meaning of the expression defined in sub-section (3) of that Section before it could be considered for registration; (b) Whether a mark consisting of an ordinary word of the language would not qualify for registration even though it may satisfy the requirements of one of the clauses (a) to (e) of sub-section (1) of Section 9; an (c) Whether the word platinum would be ineligible for registration either because of (a) or (b) above.

(32) WHILE it is fairly well settled that a mark must not only fall within any of the four clauses (a) to (d) of sub-section (1) of Section 9 but must also be distinctive and this statement of the law appears in Kerlys (tenth edition) on page 95 and is apparently based on a number of English decisions and it was so held in India, among others, by the Calcutta High Court in the case of rasoi (supra), it is a possible view to take on the construction of the various clauses of sub-section (1) of Section 9 that the mark, which would qualify in any of the clauses (a) to (d), would be per se distinctive and that the expression any other distinctive mark in clause (a) of that sub-section would not, no its true construction, denote that the mark referred to in clauses (a) to (d) must also be distinctive but would indicate that it is so and that sub-section (3) of Section 9, which defines expression distinctive, has relevance only to clause (e) of sub-section (1) of Section 9, sub-section (2) of Section 9, sub-section (4) of Section 9 and certain other provisions of the Act where the expression distinctive or distinctiveness is used such as Sections 10 (1), 31 (2) and 32 (c) of the Act. The position with regard to the question as to the limitation on the use of common word of the language in trade marks is also not free from difficulty because, as at present advised, it appears to me, on a consideration of a number of decisions both in England and in India, that, having regard to the legislative history of the Act as indeed of the English Act of 1938, there would be no bar to use of common words of the language if they qualify under any of the clauses (a) to (d) of sub-section (1) of Section 9 and that the limitation is only confined to words which are either descriptive or are laudatory. Assuming that the answer to the question (a) above be in the affirmative or of (b) above in the negative, the third question, whether the word platinum could be said to be distinctive either in the sense that it is adopted to distinguish or in the sense that it is capable of distinguishing goods and as to whether it would be within the mischief of the limitation on the words of the language for the purpose of being encased by registration as a mark also requires consideration.

(33) UNFORTUNATELY, the learned Assistant Registrar did not devote attention to any of these questions, save, assuming that the mark, even if qualifying in clause (a) to (d), must also be distinctive, in view probably of the conclusion at which he arrived on the question of descriptive character of the word platinum. His conclusion, however, that a mark which was never in use could never be said to be distinctive either in the sense of being adapted to distinguish or capable of distinguishing is wholly erroneous. The expression adapted to distinguish and capable of distinguishing do not necessarily have relation to the actual user of the mark even though by virtue of the provisions of sub-section (5) of Section 9, the actual use is one of the matters which could be taken into account in determining whether a mark was distinctive or was capable of distinguishing. A mark is distinctive according to sub-section (3) of Section 9 if it is adapted to distinguish i. e. adapted of itself, standing on its own feet, while capable of distinguishing would seem to indicate that the mark concerned with the proper condition in due course may become actually distinctive i. e. capable of distinguishing the goods. The actual user of the mark is, therefore, not a necessary condition either for its distinctiveness or its capability to distinguish even though the actual user is one of the matters that could be considered in determining the distinctiveness or the capability of a mark to distinguish.

(34) THE aforesaid questions are primarily questions of law and I would normally have had no hesitation in determining them in an appeal but they do involved an examination and assessment of the term platinum from the point of view of its distinctiveness of capability to distinguish which, to an extent, may be considered to be a technical matter and it is proper in cases of trade marks that the Courts give due weight to the opinion of the Registery and it would, therefore, be proper that these questions are first determined by the learned Assistant Registrar.

(35) FOR all these reasons, I am of the view that the impugned order should be set aside and the proceedings remanded to the learned Assistant Registrar for fresh decision as to the registrability of the mark consisting of the word platinum in Part A or Part B of the Register on the basis that the said mark is not descriptive either of the character or quality of the goods in question and on a consideration of the various questions after hearing the parties and I direct accordingly.

(36) THE records be transmitted to the Registry and the Parties are directed to appear before the learned Assistant Registrar, Trade Marks, Delhi on July 25, 1974.

(37) IN the peculiar circumstances of this case, the parties would bear their respective costs.