Decided on February 06,1970

Lakshminarayan Karva And Ors. Appellant
Satyanarayan Khubchand Karva And Anr. Respondents


S.MAHARAJAN, J. - (1.) THIS is an appeal filed by the registered proprietors of the trade mark bearing No. 217448 against the order of the Assistant Registrar of Trade Marks, Madras, allowing the first respondent's application under sections 46 and 56 of the Trade and Merchandise Marks Act, 1958, for rectification of the register by expunging the said mark from the Trade Marks Register.
(2.) LAKSHMINARAYAN Karva, Balakrishna Karva, Harikishan Karva and Srikishan Karva have been partners carrying on business under the name and style of Rama -chandra Lakshminarayan Karva at Begum Bazaar Hyderabad, Andhra Pradesh. The application for registration of the impugned trade mark was made on 30th August, 1963. In the affidavit in support of the application it was affirmed that the trade mark was first adopted or invented by the partnership concern in the year 1956 for use of ammonium chloride (navasagar) in industry, that the said trade mark had been in use continuously exclusively and openly since then without any interference or interruption from any quarters whatsoever, that the goods under the mark were known, advertised, demanded, distributed, sold and supplied as chandtara (moon and star) and also as "RLK Navasagar", and that goods worth several lakhs of rupees had been sold under the said marks and the trade mark had become very popular and deserved the protection of law.
(3.) THE trade mark consisted of the word 'Salammoniac' appearing in between two symmetrical devices of crescent and star. Within each device of crescent and star the letters RLK were inscribed, in the blank space between the star and the crescent. On the insistence of the Assistant Registrar of Trade Marks the applicants disclaimed the right to the exclusive use of the device of a crescent and star and the expression 'Salammoniac', whereupon the trade mark was accepted for registration by order of the Assistant Registrar on 9th March, 1964, and the application as accepted for registration was advertised in the Trade Marks Journal dated 1st June, 1964. On 27th June, 1966, the first respondent filed an application before the Assistant Registrar of Trade Marks, Madras, praying that the entry in respect of the trade mark No. 217448 be removed from the register. In support of this application the first respondent stated that he had been dealing in ammonium chloride since 1960, that for the purpose of distinguishing his goods from those of other manufacturers, he had been using various trade marks, one of which was label containing devices of two stars and crescents, the letters KCI within the present device and the expression ' Amolo ' in between the two devices, that the mark had been used on ammonium chloride since 1961, and that if the trade mark No. 217448 continued in the Trade Marks Register it was likely to embarrass or hurt the first respondent. He further contended inter alia, (i) that the user claimed by the registered proprietors (the appellants) was false and registration had been obtained by them by misleading the Assistant Registrar, (ii) that on the date on which the registered proprietors made their application the mark had not been used at all by them and registration was obtained by false statements regarding user; (iii) the registered trade mark No. 217448 was neither distinctive nor capable of distinguishing goods of the registered proprietors and was therefore not registrable under Section 9 of the Act ; (iv) that the mark of the registered proprietors was registered without any bona fide intention on their part and (v) that as the entry relating to the above -mentioned trade mark was made without sufficient cause and was wrongly remaining on the register it should be expunged under Section 56 of the Act. The learned Assistant Registrar of Trade Marks, after giving notice of the application for rectification to the registered proprietors and after receiving evidence of both sides in the shape of affidavits held that there was no proof that the trade mark had become distinctive of the goods of the registered proprietors, that it had been registered without sufficient cause and was wrongly remaining on the register, and should therefore be taken off the register. He also rejected the request of the registered proprietors to have the trade mark transferred to Part B of the registry on the ground that the trade mark was neither adapted to distinguish nor capable of distinguishing. Consequently the application for rectification was allowed and the entry relating to trade mark bearing No. 217448 in Clause I expunged from the register. The Assistant Registrar also directed the registered proprietors to pay costs of the proceedings to the applicants for rectification.;

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