CHARAN SINGH Vs. AJIT SINGH AND ANOTHER

JUDGEMENT

(1.) The petitioner is the proprietor of Bahktawar Engineering Works, Goraya, and is carrying on the business of manufacturing chaff-cutting machines and accessories and other agricultural implements. It is alleged in the petition that the petitioner-firm has been using mark of two pigeons on a twig facing each other as a distinctive mark of its products. The mark is known as 'Do Kabuttar'. It is then alleged that the birds in various postures are commonly used as trade marks in the trade of agricultural machinery and implements and some of those birds have been registered as trade marks while others have not been got registered. The customers of these goods are illiterate agriculturists of rural areas. They are hardly able to distinguish one trade mark from another from its pictorial devices inscribed on the steel and cast iron parts. The products of various manufacturers thus come to be known by the bird or the animal which is used as the trade mark, such as 'Horseman' is known as 'Ghora Marka' 'Lion Brand', is known as 'Shermarka' and goods of other trade marks are known as 'Tota Marka', 'Do-Chiri Marka', 'Baaz Marka' 'Mayna Marka' etc.

(2.) The petitioner goes on to allege that when respondent 1 applied for the registration of his trade mark 'Do Chiri', a dispute was raised by Sadhu Singh, the owner of the Parrot Brand, and in those proceedings the said respondent admitted that birds were commonly used as trade marks in the trade and gave a list of 20 trade marks with pictorial devices of birds, registered and unregistered but in current use. The petitioner has also made an application for registration of his trade mark 'Do Kabuttar' which is pending with the Assistant Registrar of Trade Marks who called for evidence of concurrent user by his letter dated April 24, 1969. The petitioner claims that the register of the trade marks is liable to be rectified in respect of the trade mark 'Do-Chiri' of respondent 1 because the Registrar, while registering it, did not safeguard the interests of other persons making use of birds in different postures as trade marks on the basis of honest concurrent user for a long time. Respondent 1 filed a complaint under Sections 78 and 79 of the Trade and Mechandise Marks Act, 1958, (hereinafter called the Act), against the petitioner in the Court of the Judicial Magistrate, Phillaur, on March 17, 1969 which has necessitated the filing of this petition for the rectification of the entry in the register of trade marks. The relief claimed by the petitioner is that respondent 2 may be directed to cancel the registration of respondent No. 1's trade mark 'Do Chiri' under No. 141359 as entered in the register of trade marks and only allow the registration of respondent No. 1's trade and 'Do Chiri' strictly amended in colour and other particulars to protect the honest concurrent user of the petitioner's trade mark 'Do Kabuttar' and the petitioner may be allowed costs of the petition.

(3.) Respondent 1 has filed a written statement in which it has been pointed out that the petition is not competent under Section 56 of the Act and that the petition has been filed about twenty years after the registration of the trade mark of the answering respondent which was done in 1949. On merits it has been stated that the petitioner has not been using the trade mark 'Do Kabuttar' since 1952 and that the respondent came to know that the petitioner was using the trade mark in October, 1967, and filed the complaint against the petitioner on December 27, 1967, because the petitioner had imitated the trade mark of respondent 1 and was using it dishonestly in order to cause injury to respondent 1 and illegal again or profit to himself. It has further been alleged that respondent 1's firm is the owner of the trade mark 'Do Chiri' under No. 141359 dated November 28, 1949, in Class 7, and has been using the said trade mark regularly and continuously in the course of trade in respect of 'Agricultural Machinery, Chaff-cutter Blades and their components, all included in Class 7' since the year 1922 to indicate that such goods are of his manufacture. Finally, it submitted that the petitioner is not entitled to any relief in the present petition.