N.G.Nandi,J. - (1.) This appeal under Section 109 (2) of the Trade & MerchandiseAct (hereinafter referred to as "the Act") is directed against the order under Section21 of the Act dated 1.6.1995, rejecting the opposition to the registration of the trade
(2.) The facts leading to the filing of the present appeal, shortly stated, are thatOnkar Bearing Industries and others applied for registration of Trade Mark "MBS"in respect of bearings included in class 7 vide Application No. 428265. The presentappellant Maekawa Bearing Manufacturing Company Limited opposed theregistration sought and filed notice of opposition vide No. DEL-7680 contendingthat they are the registered proprietors in India of the trade mark "MBS" in respectof bearings of all kinds in Classes 7 and 12. The Deputy Registrar of Trade Marksdisallowed the opposition No. DEL-7680 and allowed the registration of the markvide Application No. 428265 in Class 7, further directing the opponents to pay costsof Rs. 105.00 to the applicants. It is this order, which is sought to be challenged bythe appellant/original opponents in this appeal.
(3.) It is contended by Mr. Chawla, learned Counsel for the appellant that theunsigned vouchers be left out but the other vouchers and the affidavit ought to havebeen considered for the purpose of deciding the opposition; that the appellant is aregistered proprietor of trade mark "MBS" since 1985 and the application for thesame was filed on 11.4.1978; that the respondent applied for the registration of themark "MBS" on 10.4.1984; that how does the respondent get mark "MBS"; whetherthe adoption of the mark "MBS" can be said to be honest concurrent user. As againstthis it is submitted by Mr. Bhalerao, learned Counsel for the respondent that therespondent has been using the mark "MBS" since 1970 i.e. for over more than 25years. Relying on Sections 12(3) and 33 of the Act, it is contended that the user ofthe mark "MBS" by the respondent is an honest concurrent and that there is noreason to interfere with the exercise of discretion by respondent No-2. In this regard,reliance is placed on the decision reported in AIR 1981 Calcutta p:53.;