Decided on November 16,2006



S. Usha, Member (T) - (1.) THE applicant has filed this application for rectification of registered trade mark Laminated Veneer Lumber with its abbreviation LVL in respect of doors, windows and their frames. THE applicant had taken out an interim application in M.P. 51/2005 for stay / injunct the effect and operation of registered trade mark No. 775203B in class 19 during the pendency of the application for rectification. THE case of the applicant is that they are engaged in the well known and well established business of manufacturing and marketing, inter-alia, of panel door shutters, chemically treated and laminated veneer lumber doors for the past several years. THEy have honestly and bonafidely intended to use and used the true, generic and common description Laminated Veneer Lumber (LVL) in respect of its goods, i.e., the goods of such description.
(2.) The description Laminated Veneer Lumber has not only been adopted and used by the applicant but has also been used by many others in the trade and in fact the registered proprietor also used the same as description of goods and not as trade mark. Laminated Veneer Lumber is common to the trade of doors and windows within the knowledge of the registered proprietor as well as the applicant. The applicants have legal and vested rights to the use of the said expression Laminated Veneer Lumber for the said goods. The registered proprietor had lodged a complaint and had taken legal action against the applicant in Delhi on the basis of the impugned registered trade mark. The applicant is in the same trade as the registered proprietor and as such the applicant is an aggrieved person by the impugned illegal registration of the trade mark by the registered proprietor.
(3.) THE impugned trade mark in relation to impugned goods would deceive and would cause confusion among the public. THE impugned trade mark was registered without any bonafide use in relation to the goods. THE registered proprietor has not used the impugned trade mark for a period of more than five years and three months prior to the date of filing his application and as such has not acquired distinctiveness in respect of the goods for which it is registered. THE impugned trade mark has been registered in contravention of Section 11 of the Trade Marks Act, 1999 (hereinafter referred to as the Act) and as such offends the provisions thereof on the date of commencement of this action. THE registration of the trade mark is contrary to provisions of Sections 9, 11, 18, 31, 32, 47 and 57 of the Act.;

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