The Delhi High Court has rejected the view of the Senior Examiner that the goods, in respect of which registration of the ‘COCK’ word mark was being sought by the Appellant (water spay toy guns), were similar to the goods in respect of which the ‘COCK’ device mark stood registered (toy pistols using amorces, used as fireworks).
According to the Court, a gun which sprays water and a gun which emits a spark and, therefore, releases heat and light are about as alike as chalk and cheese.
The Court also held that use of both the goods on similar occasions does not make them like, similar, or allied, even in ordinary parlance.
It observed that similarity, for the purposes of Section 11(1) of the Trade Marks Act, 1999, has to be of the goods or services, not of the occasion of their user.
The Court was hence of the view that the Appellant’s request for registration could not have been refused on the ground that the COCK brand stood registered in favour of another person, for toy pistols.
The High Court in the case of Manu Garg and Ratan Behari Agrawal v. Registrar of Trademarks [Judgement dated 1 February 2023] also noted that mere identity or similarity of the marks is not sufficient to disentitle an applicant for registration under Section 11(1).
