Decided on June 09,1993



A.N. Varma, J. (Chairman) - (1.) BY this order, we are disposing of two applications, one filed by the petitioner (who has filed the complaint giving rise to the enquiry which has been ordered by the Commission under Section 36B(d) of the Monopolies and Restrictive Trade Practices Act) and the other under Section 12A by the respondents for discharging the ex parte injunction issued by the Commission.
(2.) In the application under Section 12A, the following reliefs were claimed : (a) an ad interim injunction be issued restraining the respondents from going ahead with its public issue opening on February 22. 1993, and from allotting the shares ; (b) a further injunction be issued prohibiting the respondents from using the funds realised from the impugned public issue until the disposal of the enquiry ; and (c) an ad interim injunction be issued restraining the respondents from using the brand name/trade name, namely, "KEW" in any manner on any advertisements, prospectus, letterheads, correspondence, products, business dealings, etc., till the disposal of the enquiry. The main petition along with application under Section 12A was presented before the Commission by one Siya Ram Kumar Engineering Works Pvt. Ltd. (the petitioner, hereafter). Shortly, the allegations were that the petitioner was registered as a company under the Companies Act, 1956, in the year 1960. Prior to that the manufacturing activities were being carried out by Kumar Engineering Works. After Siya Ram joined hands with the existing Kumar Engineering Works, the name of the concern was changed to Siya Ram Kumar Engineering Works Private Limited. The brand/trade name which was being used by Kumar Engineering Works previous to its merger with Siya Ram was "KEW" and it is alleged that in view of its long user it came to acquire considerable goodwill because of which Siya Ram Kumar Engineering Works decided to use the same and got the same registered under the Trade and Merchandise Marks Act, in May, 1963. Registration No. was 215391 and the trade mark allotted was "KEW". This trade mark was used in respect of motor land vehicles. The registration was subsequently extended in 1977 to include tractors and its parts also. It is claimed that more than 250 types of components of various types of vehicles and other engine accessories are being manufactured by Siya Ram Kumar Engineering Works. In course of time, this trade mark earned wide reputation for the standard, quality and durability of the products manufactured by the petitioner.
(3.) IT is alleged that the second respondent, of which Shri Gurbachan Joneja was the sole proprietor, attempted to illegally copy the aforesaid trade name with respect to its own products and with that end in view it filed an application for registration of the same trade mark "KEW" in the year 1969 before the Assistant Registrar of Trade Marks. The petitioner opposed that application and filed objections against the grant of the said trade mark to the second respondent. The latter, however, withdrew his application and got it dismissed as withdrawn in 1977. IT had, however, already filed another application on November 3, 1976. The second application was also opposed by the petitioner. Upon a consideration of the entire matter, the Deputy Registrar dismissed the application for registration filed by the second respondent by his order dated April 12, 1984. The Deputy Registrar recorded three findings : (i) There was a deceptive similarity between the trade mark already existing in favour of the present petitioner and that sought by the second respondent. (ii) As, however, the petitioner and the second respondent were dealing in altogether different products there was no likelihood of any confusion about ownership of the products, and the objection filed by the present petitioner under Section 12( 1) of the Trade and Merchandise Marks Act was accordingly overruled on the ground that there was no trade connection between the goods of the petitioner and the said respondent. (iii) The objection of the petitioner filed under Section 9 of the Trade and Merchandise Marks Act was sustained on the finding that the applicant (the present respondent No. 2) was able to establish the use of the said trade mark "KEW" in respect of fuel pumps and lubricating pumps only for 22 months since the filing of the application on November 3, 1976, which was too short to establish "factual distinctiveness" of the applicant's mark to qualify for registration in part (a) of the "Registration of Trade Marks".;

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