Z.S. Negi, Chairman - (1.) THIS is an appeal under Section 91 of the Trade Marks Act, 1999 (hereinafter referred to as the Act) directed against the order dated 11.6.2004 passed by the Assistant Registrar of Trade Marks, Delhi whereby he allowed the opposition No. DEL -T -2215/ 57113 and refused the application No. 595283 for registration of trade mark.
(2.) THE case of the Appellant -a proprietorship firm of which Smt. Premwati Bansal is the sole proprietor -is that it is engaged in the business of processing and marketing of rice, food grains and pulses since the year 1990. The Appellant claims to be the proprietor of the trade mark KANHIYA LABEL which was adopted on 1.4.1990 and thereafter the said mark has been in continuous use up to the present time without interruption or interference from any corner whatsoever and that it has already built up a valuable trade under the said trade mark. The trade mark KANHIYA LABEL of the Appellant has, on account of its long, continuous, extensive and exclusive use, already become distinctive and associated with the aforementioned goods of the Appellant. It is further claimed that the public at large associate the said mark with the goods of the Appellant and the Appellant has used the said mark exclusively to the exclusion of others. The Appellant has stated to have the mark widely advertised through different media such as advertisement in leading newspapers, distribution of trade literatures and novelties, etc. and it has already spent substantial sum of money on the publicity of the said mark and in consequence thereof the said mark enjoys solid and enduring reputation in the markets. On 22.4.1993, the Appellant filed application No. 595283 for registration of trade mark KANHIYA label in class 30 claiming user since 1.4.1990 in respect of the aforesaid goods and the said application was advertised, before acceptance, in the Trade Marks Journal No. 1231 (Supplement) dated 21.9.2000 at pages 263 -264. On 16.10.2000, the Respondent herein gave notice of its intention to oppose the registration of trade mark on the grounds that the Respondent is engaged in the business of various kinds of sweets, namkeens, halwa, poori, samosa, bhujia, chips and all such other halwai -made and/or cooked/fried preparations from the year 1971 and it has been using the trade mark 'KANAHYA' regularly, extensively and without interruption of any kind whatsoever and the said mark has become popular and distinctive in the markets. It claimed that the Respondent is the first and prior adopter and promoter of the mark, and is the true and lawful proprietor of the mark KANAHYA. The Respondent is stated to have acquired statutory rights to the exclusive use of the trade mark KANAHYA by virtue of its registration under No. 354090 in class 30 and the said registration is valid and subsisting. The Respondent mainly objected to the registration of trade mark that the same is prohibited under the provisions of Sections 9, 11, 12 and 18 of the Act and the said opposition was numbered as DEL -T -2215/57113. The Appellant herein then filed the counter -statement dated 26.7.2001 generally denying the material averments made in the notice of opposition. The Respondent did not file any evidence in support of its opposition but in the request for extension of time on Form TM -56 dated 11.8.2001 and Form TM -56 dated 24.11.2001, it relied upon the facts and circumstances stated in the notice of opposition as part evidence. Thereupon, attention of the Appellant was invited by the Registrar of Trade Marks vide letter dated 19.9.2002 for filing evidence in support of the application under Rule 54 of the Trade and Merchandise Marks Rules, 1959 but the Appellant did not initiate any action on its part and, therefore, the matter was ultimately set down for hearing on 8.6.2004. After hearing the matter on 8.6.2004, the Assistant Registrar of Trade Marks passed the impugned order dated 11.6.2004 whereby he allowed the opposition No. DEL -T -2215/57113 of the Respondent and refused the registration of application No. 595283 of the Appellant.
(3.) AGGRIEVED by the impugned order dated 11.6.2004, the Appellant challenged the said order by way of filing the present appeal on the grounds, inter alia, that the Registrar ought to have appreciated that the goods of the Appellant and goods of the Respondent are quite different and there is no any trade connection between the them; that the impugned order is erroneous in law and on facts; that the Registrar failed to appreciate that the Respondent did not comply with the mandatory requirement of provision of Sub -rule (1) of Rule 50 of the Trade Marks Rules, 2002 (hereinafter referred to as the Rules) and as such the opposition ought to have been dismissed in view of the provision of Sub -rule (2) of Rule 50 of the Rules alone; that the Registrar ought to have appreciated that the Respondent is guilty of suppression of material fact that its application being No. 354090B was limited only for sale in the State of Punjab and the Appellant's application for registration should have been allowed to proceed for registration excluding the State of Punjab; that the Registrar failed to appreciate that the Respondent has miserably failed to discharge the onus upon it to prove that the objections raised in the opposition under Sections 9, 11 and 12 of the Act are sustainable; that the Registrar failed to return any finding on the objections raised under Sections 9, 11, 12 and 18 of the Act; that there is apparent error on the face of the record and there is sufficient reason for review of the impugned order and that the impugned order is non -speaking order and the same is made mechanically, without due care and caution in the exercise of discretion.;