- (1.) The present appeal has been filed against the order dated 10.01.2005 passed by the Intellectual Property Appellate Board (in short "the Board") in Original Appeal No. 35/2004/TM/KOL whereby the Board allowed the appeal filed by the respondent herein while setting aside the order dated 31.03.2004 passed by the Assistant Registrar of Trade Marks.
(2.) Brief facts: (a) One Shri Lal Babu Priyadarshi-the appellant herein, trading as M/s Om Perfumery, Bakerganj, Daldali Road, Patna made an application to the Registrar of Trade Marks to register a trade mark by name "RAMAYAN" with the device of crown in class 3 in respect of incense sticks (agarbattis, dhoops) and perfumeries etc. (b) One Shri Amritpal Singh-the respondent herein, was a dealer for the sale of the products of the appellant herein and was also trading as M/s Badshah Industries, Chitkohra, Punjabi Colony, Patna. The respondent herein filed a Notice of Opposition to oppose the registration of aforesaid trade mark under Sections 9, 11(a), 11(b), 11(e), 12(1), 12(3) and 18(1) of the Trade and Merchandise Marks Act, 1958 [repealed by the Trade Marks Act, 1999 (47 of 1999)-in short "the Act"] claiming that the impugned mark, being the name of a religious book, cannot become the subject matter of monopoly for an individual. (c) The Assistant Registrar of Trade Marks, after holding that the impugned trade mark consists of device of crown and the word "RAMAYAN" is capable of distinguishing the goods and is not included in the list of marks not registrable under the Act, by order dated 31.03.2004, dismissed the application filed by the respondent herein. (d) Being aggrieved by the order dated 31.03.2004, the respondent herein preferred an appeal before the Board being Original Appeal No. 35/2004/TM/KOL. The Board, by order dated 10.01.2005, set aside the order dated 31.03.2004, passed by the Assistant Registrar of Trade Marks. (e) Aggrieved by the order dated 10.01.2005, the appellant has filed this appeal by way of special leave.
(3.) Heard Ms. Anuradha Salhotra, learned counsel for the appellant and Mr. Sudhir Chandra, learned senior counsel for the respondent.;