S. Usha, Vice-Chairman - (1.) APPEAL arising out of the order dated 27.11.2001 passed by the Assistant Registrar of Trade Marks disallowing the opposition No. DEL.T.845/52572 and allowing the application No. 531669 in class 9 to proceed for registration with the condition that the word CAPITAL shall be used in connection with the logo as represented by the applicant in his application on Form TM -6 under the provisions of the Trade and Merchandise Marks Act, 1958 (in short the Act).
(2.) THE second Respondent herein filed an application for registration of the trade mark 'CAPITAL' with a logo on 18.06.1990 under No. 531669 in class 9 in respect of electronic and electrical apparatus and instruments like stereo, mono amplifiers, tape recorders, tape decks, radio receivers, tuners, loud speakers and loud speaker system, record players, televisions, electric wire and cables and parts of electric fittings, including electric switches, coil holders, plugs, electric adopters, electric connectors, electric testers, electric bells and buzzers, irons, voltage stablilizers, capacitors, condensers, motor starters, super enamel copper wire, Bakelite sheet, miniature circuit barkers, fuses and fuses units, switch gears, circuit boards, panel accessories, current transformers, refrigeration controls, industrial fittings, tubes and lamps, conduit P.V.C. pipes / accessories, film, glass fabric tapes and cloth, leatheroid and press paper, mica and micanite products, E -class shoes, empire and varnished class sleevings, telephone, tel -exchange, wireless and intercom parts and accessories distribution boxes, O.C.B and A.C.B., fans motors and fluorescent fixtures included in class 9 as a proposed to be used mark. The mark was advertised before acceptance subject to association of the applicant's (Respondent's) already registered trade mark No. 460507, in Trade Marks Journal No. 1174 dated 01.03.1998 at page No. 314. The trade mark was proposed to be used. The Appellant herein opposed the registration on the ground that the grant of registration would be in contravention of the provisions of the Act. The second Respondent filed its counter statement to the notice of opposition. On completion of the formal procedure, the Registrar heard the matter and passed the impugned order. The registration was granted on the ground that the applicant i.e. the second Respondent was already a registered proprietor of the said impugned trade mark used in respect of the same description or allied or cognate goods under Section 12(3) of the Act and was also using the trade mark as a part of their trading style. The second Respondent's adoption is honest as they are the registered proprietors of the trade mark as early as 1990. The second Respondent, therefore, can claim to be the proprietor of the trade mark and therefore, registration allowed under Section 18(1) of the Act.
(3.) AGGRIEVED by the said order , the opponent filed the instant appeal before the Hon'ble High Court of Delhi in CM (M) No. 70 of 2002 and subsequently transferred to this Appellate Board in terms of provisions of Section 100 of the Trade Marks Act, 1999 and re -numbered as TA/187/03/TM/DEL.;