TRIPTI INDUSTRIES LTD. Vs. REGISTRAR OF TRADE MARKS

JUDGEMENT

(1.) These petitions for leave to appeal are directed against the common judgment and order dated 04.08.2002 passed by a Division Bench of the High Court Division in Trade Mark Appeal Nos. 54 & 55 of 2001 allowing the appeals.

(2.) Short facts are that the appeals before the High Court Division were filed by Md. Sharifuddin the proprietor of registered trade mark OLYMPIC being No. 31244 dated 15.08.1990 in class 16 for BALPEN and the respondent No. 2 of those two appeals, namely, TRIPTI INDUSTRIES LTD. and OLYMPIC INDUSTRIES LTD. are two different companies these two companies filed Rectification Case Nos. 249 of 1998 and 250 of 1998 for rectification of trade mark registry by removing the aforesaid mark from the registry of the respondent No. 1.

(3.) In rectification case No. 249 of 1998 the case of the applicant respondent No. 2 Tripty Industries Limited is that it was a company incorporation under the (Companies Act and at the time of incorporation of the said company it had intention in its mind to diversify its business amongst others by manufacturing Olympic Ball pen with the brand name 'OLYMPIC' and accordingly the applicant created a positive atmosphere to manufacture the said products and they are already using the brand 'OLYMPIC' and in order to introduce a new Line of products namely OLYMPIC BALLPEN the applicant with its sister concern filed two separate application namely No.C-8081 and C-8082 for registration of the Mark 'OLYMPIC' in class-16 for BALLPEN. The case of the applicant in appeal No. 54 of 2001 is that they proposed to use the mark for the aforesaid product. They went to introduce it very soon and with that end in view they have filed the aforesaid application for registration of the mark and they have come up with this T.M. 26 on the ground that although the appellant is the proprietor of the mark 'OLYMPIC' they are not in continuous of the mark but for a period of more than five years from the date of its registration. Therefore, the said mark should be removed from the trademark Registry. The further case it that if the mark remains in the Registry that would give rise to confusion and deception within the meaning of section 8 (a) of the Act and also under section 10 (1) of the said Act and since the petitioner company intend to introduce new products with the self same mark and filed an application for registration of the mark they claim to be an aggrieved person both within the meaning of sections 37 and 46 of the Trade Marks Act, 1940.