# • 2 S.C.R. SUPREME COURT REPORTS LONDON RUBBER CO. LTD v. DUREX PRODUCTS - **Citation:** [1964] 2 S.C.R. 211 - **Court:** Supreme Court of India - **Decided:** 1964 - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/2-s-c-r-supreme-court-reports-london-rubber-co-ltd-v-durex-products-2921 - **Pages:** 20 ## Headnote • 2 S.C.R. SUPREME COURT REPORTS LONDON RUBBER CO. LTD. v. DUREX PRODUCTS - (K. SOBBA RAO, RAGHUBAR DAYAL and J.R. MUDHOLKAR JJ.). l 211 Trade Nark-Registration of-" Durex" -Oppo.1itionM ark• indentical-Registration allowed by the Registrar on the grounds of honest concurrents user- Order of the Registrar restored-Trade Marks Act, 1940· (V of 19,/0),' 88. 8 (a), 10 (2). The respondent made an application before the Deputy Registrar of Trade Marks for registering the mark "Durex" used by it on the packing of the contraceptives manufactured and marketed by it. The registration was disputed by the appellant on the ground that it has been using the trade mark "Durex" in India since the year 1932 an11 its registration was renewed in the year 1954, for a period of 15 years. The Deputy R~gistrar of Trade Marks over ruled the objection and admitted the mark" Durex" to registration as sought ,by. the respondent. An appeal preferred to the High Court against this order was also dismi1Jsr:d. The appellant's main contention in this court was that as the tnarks are identical, the registration had to be refused under s. 8 (a) of the Act, the provisions of which are not subject to the provisions of s. 10 (2). Further, the require- - ments of s. 10 (2) were not satisfied in this case and its provisions were not applicable. Held, that though the langua~e of s. 8 (a) is slightly different from that of s. 11 of the English Act and that of •· 10 (I) from that ofs. 12 (1) of the English Act, there is no reason for holding that the provisions of s. 8 (a) would not apply where a mark identical with or resembling that sought to be registered is already on the register. The language of s. 8 (a) is wide and though upon giving full effect to that language the provisions of s. 10 (I) would, in some respects, overlap those of s. 8 (a), there can be no judification for not giving full effect to the language used by the legislature. Re Hac'k's Application, (1940) 58 R, P. C. 91; Re Arthur Fairest Ltd's application (19'>1) 68 R. P. C. 197; Sno v. Dunn, [1890] 15 A. C. 252, referred to. . · l1larch 4. .. · ... ·. ,. Lo11don Rubbe.r Co Ltd •• D.ure.x Products Muiiul/c., J. 212 SUPREME COURT REPORTS [1964] VOL. Held, further, that the provision of Sub-s. (2) of s. IO are by way of an exception to the prohibitory provisiom of the Trade Marks .~ct. Those provisions are conUiued in s. 8 (a) ands. 10 (1) . Ram .• .Varain Son8 Ltd. v . .. :lsaistant 011nunil'8irJn"r of l::i1tlt'8 Tax, [1955) 2 S. C. R. 483, held inapplicab!c. Bas" v. Nicholson & !:Jons Ltd., (1932) 49 R. P. U. 88; Spillera Ltd's application, (1952) 69 R. P. C. 327; Alexanrkr Pitrict &: Sons Ltd'.< application, (1933) 50 R. P. C, 147 aud Re Kidax (Shirt•) Ltd's application, (1960) R. P. C. 117 C.A., relied on. Held, also, that no hard and fast rule can be laid dowu regardi'"g the volume of use for the purposes of Sub-s. \2) of s. IO. Ordinarily it would be sufficient if it is shown that there was II eommercial use of the mark. There was such a use iu this i:.se, cannot be disputed and the honest concurrent use of -\~(' mark by the respondent for a considerable period has been established. The circumstances in this case can be properly regarded a' special circumstances to justify the re_gi•tration of the 'Tll>rk and there is hardly any likelihood of confusirm or deception. CIVIL APPELLA1'E J UIUSJJWTION : Civil Appeal No. 26 of 1961. From the ## Text • 2 S.C.R. SUPREME COURT REPORTS LONDON RUBBER CO. LTD. v. DUREX PRODUCTS - (K. SOBBA RAO, RAGHUBAR DAYAL and J.R. MUDHOLKAR JJ.). l 211 Trade Nark-Registration of-" Durex" -Oppo.1itionM ark• indentical-Registration allowed by the Registrar on the grounds of honest concurrents user- Order of the Registrar restored-Trade Marks Act, 1940· (V of 19,/0),' 88. 8 (a), 10 (2). The respondent made an application before the Deputy Registrar of Trade Marks for registering the mark "Durex" used by it on the packing of the contraceptives manufactured and marketed by it. The registration was disputed by the appellant on the ground that it has been using the trade mark "Durex" in India since the year 1932 an11 its registration was renewed in the year 1954, for a period of 15 years. The Deputy R~gistrar of Trade Marks over ruled the objection and admitted the mark" Durex" to registration as sought ,by. the respondent. An appeal preferred to the High Court against this order was also dismi1Jsr:d. The appellant's main contention in this court was that as the tnarks are identical, the registration had to be refused under s. 8 (a) of the Act, the provisions of which are not subject to the provisions of s. 10 (2). Further, the require- - ments of s. 10 (2) were not satisfied in this case and its provisions were not applicable. Held, that though the langua~e of s. 8 (a) is slightly different from that of s. 11 of the English Act and that of •· 10 (I) from that ofs. 12 (1) of the English Act, there is no reason for holding that the provisions of s. 8 (a) would not apply where a mark identical with or resembling that sought to be registered is already on the register. The language of s. 8 (a) is wide and though upon giving full effect to that language the provisions of s. 10 (I) would, in some respects, overlap those of s. 8 (a), there can be no judification for not giving full effect to the language used by the legislature. Re Hac'k's Application, (1940) 58 R, P. C. 91; Re Arthur Fairest Ltd's application (19'>1) 68 R. P. C. 197; Sno v. Dunn, [1890] 15 A. C. 252, referred to. . · l1larch 4. .. · ... ·. ,. Lo11don Rubbe.r Co Ltd •• D.ure.x Products Muiiul/c., J. 212 SUPREME COURT REPORTS [1964] VOL. Held, further, that the provision of Sub-s. (2) of s. IO are by way of an exception to the prohibitory provisiom of the Trade Marks .~ct. Those provisions are conUiued in s. 8 (a) ands. 10 (1) . Ram .• .Varain Son8 Ltd. v . .. :lsaistant 011nunil'8irJn"r of l::i1tlt'8 Tax, [1955) 2 S. C. R. 483, held inapplicab!c. Bas" v. Nicholson & !:Jons Ltd., (1932) 49 R. P. U. 88; Spillera Ltd's application, (1952) 69 R. P. C. 327; Alexanrkr Pitrict &: Sons Ltd'.< application, (1933) 50 R. P. C, 147 aud Re Kidax (Shirt•) Ltd's application, (1960) R. P. C. 117 C.A., relied on. Held, also, that no hard and fast rule can be laid dowu regardi'"g the volume of use for the purposes of Sub-s. \2) of s. IO. Ordinarily it would be sufficient if it is shown that there was II eommercial use of the mark. There was such a use iu this i:.se, cannot be disputed and the honest concurrent use of -\~(' mark by the respondent for a considerable period has been established. The circumstances in this case can be properly regarded a' special circumstances to justify the re_gi•tration of the 'Tll>rk and there is hardly any likelihood of confusirm or deception. CIVIL APPELLA1'E J UIUSJJWTION : Civil Appeal No. 26 of 1961. From the judgment and order dated July HJ, l!J58 of the Calcutta High Court in Appeal from Original No. 41 of 1955. G. S. Pathak, B. Sen and D. N. J:lulclterjee, for the appellant. H. N. Sanyal, Additional Solicitor-General of India, A. N. Sinha and B. N. Ghosh, for respondent No. 1. 1963. March 4. The Judgment of the Court was delivered by MuJJHOLKAR J .-In this appeal by a certificate granted by the High Court of Calcutta under Art. 133 (1) (c) of the Constitution, the question - - 2 S.C.R. SUPREME COURT REPORTS 213 which arises for consideration is whether the Deputy Registrar of Trade Marks, Calcutta, was right in admitting to registration fue trade mark ~'Durex" which respondent No. l claims to own and is using on the packing of the contraceptives manufactured and marketed by it. The Durex Products Ii:tc., of New York City, U. S. A. made an application before the Deputy Registrar of Trade Marks on May 28, 1946 for registering the mark "Durex" used by ii on "contraceptive devices including prophylactic sheaths or condrums, vaginal diaphragms, instruments for inserting diaphragms and models for demonstrating insertion of diaphragms, vaginal jellies, applicators for vaginal jellies and surgical lubricating jellies." Its claim is disputed by the London Rubber Co., Ltd., London, the appellant before us by lodging an opposition to the registration on March 29, 1951. The appellant claims to be well-established manufacturer of surgical rubber goods and proprietor in India of the trade mark "Durex" which it has been using in India since the year 1932 i. e., from the year in which it was registered in the United Kingdom. On December 23, 1946 the appellant applied for registration of the word "Durex" in "clause X" which application was granted on July 11, 1951. Thereafter, on July 24, 1954 the registration was renewed for a period of 15 years as from December 23, 1953. The respondent No. l's application as well as the appellant's opposition came up before the Deputy Registrar of Trade Marks who, by order dated December 31, 1954, overruled the objection and admitted the mark "Durex" to registration as sought by the respondent No. I. Against this order an appeal was preferred before the High Court of Calcutta under s. 76 of the Trade Marks Act, 194.1 which was dismissed by a Division Bench of that Court on March 9, 1959, 196J London Ru{lba Co. Lid. v. • Dure:c Products Mud/i•lk" J. 1963 Looden Rubbn Co. J,td. v. · [)""" ProductJ Mu.Jf.olAor J. 214 SUPREME COURT REPORTS [1964] VOL. After obtaining a certificate ol fitnc<;S from the High Court the appellant has come up before us. On hchalf of the appellant the main contention urged by Mr. Pathak is that as the marks are identical, deception of various purchasers was inevitable and that, therefore, registration had to be refused under s. 8 (a) of the Act. In admitting the mark to registration the Deputy Registrar was, according to him, in error in applying the provisions of s. 10 (2) of the Act inasmuch as the provisions of s. 8 (a) arc not subject to those provisions. Further, according to him, the requirements of s. 10 (2) were not satisfied in this case. Section 8 of the Act reads thus : "No trade mark nor part of a trade mark shall be registered which consists of, or contains, any scandalous design, or any matter the use of which would- (a) by reason of its being likely to deceive or to cause confusion or otherwise, be disentitled to protection in a Court of justice ; or (b) be likely to hurt the religious susceptibilities of anv class of the citizens of India ; or (c) be contrary to any law for the time being in force, or to morality.'· On the face of it, this is a general provision which prohibits registration of certain kinds of trade marks as indeed would appear from the heading of the section. The appellant's objection to the registration of the mark in question would not fall under cl. (b) or cl. (c) of s. 8 but only under cl. (a). It may fall under that clause because by reason of the identity of the word .. Durell" it would be open to • - - - 2 $.C.R. SUPREME COURT REPORTS 215 the Registrar to say that deception of the purchasers or confusion in the purchasers' mind was likely to occur. Upon the findings in the case it would appear that the appellant has been using this mark for a long time and has acquired a reputation for its products and since the respondent's mark is identical with it, the Deputy Registrar would have had to reject the respondent's application if this case were governed solely by the provisions of s. 8 (a). The only remedy for the respondent No. l would, in that case, have been to establish its right to the mark by instituting a suit for that purpose. The Deputy Registrar, however, as already stated, resorted to the provisions of sub-s. (2) of s. 10 in admitting that mark to registration. We will quote whole of s. 10 as the provisions of sub-s. (I) as well as of sub-s. ( 3) were referred to in the argument before us along with the provisions of sub-s. (2). Section IO of the Act reads thus : "{l) Save as provided in sub-section (2), no trade mark shall be registered in respect of any goods or description of goods which is indentical with a trade mark belonging to a different proprietor and a !ready on the register in respect of the same goods or description of goods, or which so nearly resembles such trade mark as to be likely to deceive or cause confusion. (2) In case of honest concurrent use or of other special circumstances which, in the opinion of the Registrar, make it proper so to do he may permit the registration by more than one proprietor of trade marks which are identical or nearly resembl1' each other in respect of the same goods or description of goods, subject to such conditions and limitations, if any, as the Registrar may think fit to impose, · 1969 LondQri Ru&b.er Co. LJ<. y, Durex Proiucts Mudholkar J. /963 Uni01J Ruibtr Co Lt/. v. f)lltu Produ~tJ Mui~n!kar J. 216 .. SUPREME COURT REPORTS [1964] VOL. (3) Where scpara!c applications arc made by different persons to be rcgistcr~d as proprietors respectively of trade mark5 which are identical or nearly resemble each other, in respect of the same good, or description of goods, the Registrar may refuse to register any ot them until their rights have been determined by a competent Court." On the face of it, sub-s. (2) permits the Registrar or Deputy Registrar to admit to registration marks which are identical or nearly resemble one another in respect of the same goods or description of goods provided he is of opinion that it is proper to do so because there was honest concurrent use of the mark by more than one proprietor or because of the ~xis tcncc of special circumstances. He would, further, be entitled to impose such conditions on the user of the mark as he thought tit. l\fr. Pathak, however, contends that sub-s. (~) is merely a proviso to sub-s. (I) and as such it cannot apply to a ca'e which squarely falls under s. 8 (a}. Being a proviso to sub.s. (I), the argument 'proceeds, it must apply to the matter contained in the main provision and that since sub-s. (I) applies only to a case where a competing trade mark is already on the register it cannot apply to a case falling under s. 8 (a} which provision deals, according to him, tJnly with cases where there is no mark on the register. He contends that the language used in sub-s. (2) is in material respects identical with that. used in sub-s. (I) and thus establishes the mutual connection between the two provisions. A similar argument was advanced before the High Court and was rejected by it, in our opinion rightly. If we compare the provisions of s. 8 (a) and s. I 0 (I) it would be clear that the object of both these provisions is to prohibit from registration marks which are likely to deceive or cause confusion. - - - .. 2 S.C.R. SUPREME COURT REPORTS 217 Deception or confusion may result from the fact that the marks are identical or similar or for some other reason. While sub-cl. (a) of s. 8 is wide enough to cover deception or confusion resulting from any circumstance whatsoever sub-s. (1) of s. 10 is limited to deception or confusion arising out of similarity in or resemblance between two marks. In other words the enactment of this provision would show that where there is identity or similarity in two marks in respect of the same goods or goods of the same description, registration at the instance of another proprietor would be prohibited where a mark is already on the register as being the property of another proprietor. The provisions ofss. 8 and 10 of the Act are enabling provisions in the sense that it is not obligatory upon a proprietor of a mark to apply for its registration so as to be able to ·us- it. But when a proprietor of a mark, in order to obtah the benefit of the provisions of the Trade Marks Act, such as a legally protected right to use it, applies for registration of his mark he must satisfy the kcgts:~ar that it does not offend against the provisions of s. 8 of the Act. The burden is on him to do so. Confining ourselves to cl. (a) the question which the Registrar has to decide is, whether having regard to the reputation acquired by use of a mark or a name, the mark at the date of the application for registration if used in a normal and fair manner in connection with any of the goods covered by the proposed registration, will not be reasonably likely to cause deception, and confusion amongst a substantial number of persons (1). What he decides is a question of fact but having decided it in favour of the applicant, he has a discretion to register it or not to do so vide Re Hack' s Application (2). But the discretion is judicial and for exercising it against the applicant there must be some positive objection _to registration, (1) See 38 Halsbury's Laws of England, pp, 542, MS. (2) (19f0) 58 R. P, C. 91, · 1963 Londo.n Rubber Co Ltd. v. Dure:< Proiucts Mudholkar J. 1963 Unrl&n R11bbe1 Co. Lid v. Durtx l'r~11cts .Wutiho/kar J. 218 SUPREl\1E COURT REPORTS [1964] VOL. usually arising out of an illegality inherent in the mark as applied for at the date of application for registration, vidc Re Arthur Fairest Ltd's applicacion (1 ). DecepLion may result from the fact that there is some misrepresentation therein or because of its resemblance to mark, whether registered or unregistered, or to a trade name in which a person other than the applicant had rights vide 8no v. Dnnn ('). Where the deception or confusion arises because of resemblance with a mark which is registered, objection to registration may come under s. 10 (I) as well {3). The provisions in the English Trade l\{arks Act, 1938 {I & 2 Geo. 6 c. 22) which correspond to s. 8 and 10 (I) to 10 (3) of our Act arc ss. 11 and 12 (I) to 12 (3). Dealing with the prohibition of registration of identical and similar marks Halsbury has stated at pp. G J:l.544, Vol. :rn, thus. "Subject to the effect of honest concurTcnt use or other special circumstances, no Lradc 1tla rk may be registered in respect of any goods or description of goods that ( l) i~ identical with a trade mark belonging to a different proprietor and already registered in re;pect of the same goods or description of goods ; or (2) so nearlv resembles such a registered trade mark as to b;: likely to deceive or cause confusion." Since the Trade Marks Act, l 040 is based on the English statute and the relevant provisions are of the same nature in both the laws, though the language of s. 8{a) is slightly different from that of s. l I of the English Act and that of s. 10(1) from that of s. 12( I) of the English Act, we sec no reason for holding that the provisions of s. 8{a) would not apply where a mark identical with or resembling that sought to be registered is al~eady on the register. The languag~ of s. 8(a) is wide and though upon giving full effect to that language the provisions of s. JO(I) would, in some respects, overlap those of s. 8( a), 1 here ill (1951) 68 R.P.C. 197. (2) (1890), 15 A.f!. 2~2. (SJ ilcc nol~ 'k' alp. 5+2 of SS Hal•bury's Law1 of Eni:land - 2 S.C.R. SUPREN.IE COURT REPORTS 219 can be no justification for not giving full effect to the language used by the legislature. · It would be useful to set out the comparison between s. 12( 1) and s. 11 of the English Act made by Kerly on Trade Marks, 8th edn. p. 158. What is stated there is as follows : "A registration may often be refused under section 11 when refusal could not be justified under section 12(1) owing to the goods being of a different description . In other cases where an opponent is registered but might be unable to prove a reputation for it by use, section 12(1) ' is more effective in securing refusal of an application than section 11, e.g., Huxley's application (1). The criterion which decides whether the Registrar should make the comparison of an applicant's mark with an opponent's mark under section 11 or under section 12( 1) is whether he is considering the proved use of the opponent's mark. Prima facie, however, the scope for possible confusion under section 12 is wider than the scope for confusion under section 11." In the case before us the Deputy Registrar has permitted the registr.ition of the respondent's mark though it is identical with that of the appellant's and though the appellant's mark was not registered at the date of the respondent's application upon the ground of honest concurrent use of the mark by the respondent from the year 1928 and also on the ground that there are other special circumstances. J\fr. Pathak has challenged the finding about concurrent nse and also the finding that there are special circumstances justifying the registration of the respondent's mark. We shall deal with the arguments advanced by him on these points later in our (IJ (1924) 41 R. !'. C. !23, 4~9, 1963 London Rubber Co. Ltd v. Durex Produclr Mudholkar J. 1963 UndQfl Rubhtr Co. Ltd. •. Durtx Produtts 220 SUPREME COURT REP.ORTS [1964) VOL. judgment. For, before we do so we must deal with his argument, which is indeed his main argument, tha.t the grounds given by the Deputy Registrar for registering the mark are not available in this case because it falls under s. S(a) of the Act and not under s. IO( I). \Ve have already quoted s. !0(2) which empowers the Registrar, in the case of honest concurrent use or other soecial circumstances, to permit the registration by more than one proprietor of trade marks which arc identical or nearly resemble each other in respect of the same goods or description of goods, subject to such conditions and limitations, if any, as he may think fit to impose. If this provision is considered by itself, upon its plain language it permits simultaneous registration of identical or similar marks at the instance of several proprietor;, quite irrespective of the question whether an identical or similar mark is already on the register. The question, howe\'er, is whether sub-s. (2) can be regarded by itself or it is, as contended by Mr. Pathak, only a proviso to sub-s. (l) and being a proviso it must apply only to cases which are contemplated by tile main enacting provision, that is, sub-s. (I) of s. 10. He concedes that sub-s. (2) is not described by the legislature as a proviso to sub-s. (I) but he wants us to construe it as a proviso because it occurs in the same section as sub-s. ( 1) and its language is simiL;r to that of sub-s. (l). Mr. Pathak points out, and rightly, that sub-s. (I) ofs. JO deals solely with a case where a trade mark is already on the register and says that since 0n the date of the application made by the respondent the appellant's mark was not on the register this provision would not apply. The condition for the applicability of sub-s. ( l) is undoubtedly the existence of an identical or similar mark on the register. According to him, it is only when this 2 S.C.R. SUPREME COURT REPORTS 22i condition is satisfied that the ban upon registration imposed by sub-s. (I) can be lifted under sub-s. (2J. He lays particular stress on the opening words of sub-s .• (l) "save as otherwise provided in sub-s. (2)" and contends that full effect cannot be given to them unless sub-s. (2) is read with sub-s. (!). In support of this contention he has referred us to Ra•n Narain Sons Ltd., v. Assistant Commissioner of Sales Tax('). That was a case where this Court was considering the proviso to Art; 286{2) of the Constitution and the Court held that a proviso was meant only to lift the ban under Art. 286(2) and nothing more. Bhagwati J., who delivered the judgment of the Court has observed thus : "It is a cardinal rule of interpretation that a proviso to a particular provision of a statute only embraces the field which is covered by the main provisiou. It carves out an exception to the main provision to which it has been enacted as a proviso and 'to no other." l'hese observations, however, must be limited in their application to a case of a proviso properly so called and there is no justification for exter.cling them to a case like the present where the le5islature has, when it could well do so if that were its intention, not chosen to enact it as a proviso. The decision, therefore, affords no support to the contention. The fact that sub-s. (2\ is part of the same section as sub-s. (1) cannot justify_ the conclusion that it was enacted solely for the purpose of lifting the ban enacted by sub-s .• (1). Its language is wide enough to embrace a mark which is already on the 'register as well as a mark which is not on the register at all. The mere fact that sub-s. (1) is made subject to the provisions of sub-s. (2) cannot justify the narrowing of the scope of the language used by the (I) [1955] 2 S. C. R, 483, 493. • 1963 London Ru6h1, Co. Ltd . •• Dur1x PrOduc11 Mudholkar J. 1963 Lottclon Hubhu Co. Ltd. v. D~rtx Prttducts Muilwl"4o- J. .. ·- _.,. ... 222 SUPREME COURT REPORTS [1964) voi.. legislature in sub-s, (2). Indeed, it is the duty of the court to give full effect to the language used by the legislature. It has no power either to give that language a wider or narrower meaning than the literal one, unless the other provisions of the Act compel it to give such other meaning. Thus, for instance, if there had been no provision likes. 8(a) and the only provision relating to the prohibition of registration of marks was the one contained in · sub-s. (1) ofs. 10 the Court would have been compelled to construe the language of sub-s. (2) in such a way as to confine its operation to cases which fall under sub-s. (l). Full effect can be given to the opening words of sub-s. (I) of s. IO by construing them to mean that sub s. (I) is subservient to sub-s. (2). No violence is done to those words nor anything detracted from their rn<'aning by so construing them. Further, apart from >Ub·s. (2) there is sub-s. (3l in s. IO. If sub-s. (2) is to be given restricted meaning sub-s. (3) also will have to be given a restricted meaning and confined to cases where there is already a mark on the register. To do so would clearly be an untenable construction of sub-s. (3). That provision contemplates applications by different proprietors for registration of trade marks which arc identical or nearly resemble each other in respect of the same goods or description of goods: The competition there contemplated is amongst proprietors whose marks arc not on the register and is not limited to cases in which a mark of any other proprietor which is identical or similar to that of the competitors is already on the register. For, there is no reference in that provision to a proprietor whose mark is already on the register. If, therefore, subs. (3) cannot be limited to cases which fall under sub-s. (I) there is additional reason why sub-s. (2) cannot be so limited either. Then there is another reason why such a limitation cannot be placed upon the language used in sub-s. (2). If it were limited in the manner contended for on behalf of - 2 S.C.R .. SUPREME COURT REPORTS 223 the appellant, the result would be that a mark which is not on the register. will get a higher protection than a mark which is already on the register. Thus, honest concurrent use or other special circumstances would never be a ground for obtaining registration of an identical or similar mark unless there is on the register already a mark which is idential with or s(milar to the one mark which is sought to be registered. That would, indeed, create an extraordinary situation. As we have alreildy stated, the appellant's mark was i11 fact registered on July 11, 1951 and if Mr. Pathak's argument is accepted the very next day after the registration of the appellant's mark it would have been open to the respondent to apply for registration of its mark and the Deputy Registrar would have had the jurisdiction to register it under sub-s. (2) of s. 10, though he lacked that jurisdiction :>rior to the registration of the appellant's mark. We cannot ascribe to the legislature an intention to create such a situation, a situation which can only be described as ludicrous. In our opinion the provisions of sub·s. (2) of s. 10 are by way of an exception tc> the prohibitory provisions of the Trade Marks Act. Those provisions are contained in s. 8(a) and s. 10 (1). It has been held in Bass v. Nicholson (1), that a trade mark is not necessarily entitled to protection because its use might deceive or cause confusion and, therefore, s. 11 does not override s. 12 (2) of the English Act. In Kerly on Trade Marks, 8th edn. the position is stated thus : "It is not correct to consider section 11 without any regard to the provisions of other sections of the Act. The general prohibition contained in section 11 does not cover the cases where the tribunal thinks fit to exercise the discretion conferred by use under section 12 (2)" (pp. 168-9). In support of this statement of the Jaw reliance is placed on Spillers Ltd's Application ('). In this (1) (1952) 49 R.P,C, 88. (2) (1952) 69 R,P,C, 827, .1963 London Rubbe.r Co. Lid· v. Dur.ex Prod1'cf1 Mudlwlkar J. 1963 IArii'" Rl