HARI CHAND SHRI GOPAL Vs. KISHORE ZARDA FACTORY
INTELLECTUAL PROPERTY APPELLATE BOARD
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Z.S. Negi, Vice-Chairman -
(1.) THIS is an appeal under Section 109 of the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as the Act) against the order passed on the 11th day of November, 1998 by the Assistant Registrar of Trade Marks, New Delhi disallowing the opposition No. DEL 8139 filed by the appellant herein and accepting the application No. 508460 for registration of trade mark of 1st respondent herein.
(2.) The 1st respondent M/s. Kishore Zarda Factory had filed application No. 508460 on 11th April, 1989 at the Trade Mark Registry, New Delhi for registration of a numeral mark '100' in respect of chewing tobacco claiming user of the mark since February, 1970. The application was advertised before acceptance in the Trade Mark Journal No. 1051 dated 16th March, 1993.
On 31st May, 1993 M/s. Hari Chand Shri Gopal filed a notice of opposition opposing the registration of the 1st respondent's mark under Sections 9, 11(a) & (e), 12(1) & (3) and 18(1) of the Act claiming that the opponent firm is the registered proprietor of the trade mark '100' under No. 274897, dated September 10, 1971, in class 34 in respect of chewing tobacco, that the firm is engaged in the manufacture of chewing tobacco under various trade marks of which the numeral mark '100' is one of them, that the trade mark '100' has been in use by the firm since the year 1950, that the trade mark '100 has acquired a vast reputation and goodwill amongst the purchasing public and is exclusively associated with the firm's goods and business and that the trade mark '100' propounded for registration is identical and also goods in respect of which the applicant/1st respondent seek registration are identical to the goods in respect whereof the firm's trade mark '100' is registered and used and as such the adoption and use of the impugned trade mark by the applicant/1st respondent is likely to deceive or cause confusion in the course of trade. The 1st respondent filed counter statement on 26th April, 1994 and the appellant filed evidence in support of opposition on 5th December, 1994. Thereafter, the 1st respondent filed evidence in support of the application and the appellant filed reply evidence on 9th April, 1996. The case was heard by the 2nd respondent on 2nd November, 1998. By his order dated 11th November, 1998, the 2nd respondent disallowed the opposition No. DEL-8139 filed by the appellant and accepted the applicant No. 508460 on the grounds of long and extensive use, and honest and concurrent user without any interference by the opponent.
(3.) THE applicant filed before the Hon'ble High Court of Delhi an appeal C.M. (Main) No. 38 of 1999 under Section 109 of the Act and also an application C.M. No. 462/99 in CM(Main) No. 38 of 1999 under Order 41, Rule 5 read with Section 151 of the Code of Civil Procedure, 1908, for stay of operation of order dated November, 1998 in respect of opposition No. DEL-8139, pending hearing and disposal of the appeal. THE said appeal and application were transferred to the Intellectual Property Appellate Board (IPAB) in pursuance of Section 100 of the Trade Marks Act, 1999 and numbered as TA/141/2003/TM/DEL. This appeal was heard by the IPAB on 4.5.2006.;
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