SHRI V.RAVI - (1.) APPLICATION for removal of registered trade mark GOLDEN TEA' (label) from the register under No.704811 in Class 30 of the respondent. The grounds of application are as under: (i) its entry in the register is without sufficient cause and wrongly remaining on the Register. (ii) the impugned trade mark cannot be considered a trade mark within the meaning of Section 2(1)(zb) of the Trade Marks Act, 1999 (hereinafter referred to as the Act') (iii) the respondent has played a fraud with the Trade Marks Registry and deliberately suppressed important and material facts for registration (iv) the impugned mark is devoid of distinctive character and is not capable of distinguishing the goods/services of the respondent from those of others (v) the impugned trade mark consists exclusively of mark or indications that in the trade designate the kind, quality, intended purpose and the characteristics of the goods that are to be sold under the said brand. (vi) the mark consists exclusively of marks and indications that has become customary in the current language as well as in the bonafide and established practices of the trade. (vii)the respondents are not proprietors of the impugned trade mark. (viii)All persons connected with the tea trade are entitled to use the word "GOLDEN TEA, DEVICE OF CUP AND SAUCER" with a punch line "the symbol of the best CTC tea". The respondents are, therefore, not entitled to the exclusive rights to the impugned mark and prevent the applicants from using a descriptive word in the course of trade. (ix)the respondent had filed a Civil Suit before the Hon'ble District Judge, Jamnagar being Civil Suit No.3 of 1999 seeking permanent injunction from the use of "GOLDEN TEA". (x)In the course of the said proceedings it was disclosed that the respondent has filed an application dated 30 -12 -2009 under No.704811 stating that the said trade mark has been registered. (xi)The applicant has stated that the respondent has been in the tea trade for the last many years and has suppressed the fact that the term "GOLDEN TEA" is used to identify a category of tea leaves by the Tea Board of India and therefore the respondent has no exclusive rights to the words "GOLDEN TEA" as a trade mark. (xii)The registration of the trade mark was made in contravention of Sections 9,11,12 and 18 of the Act. The registration of the trade mark of the respondent is tainted with dishonesty and registered without any honest and bonafide intention to use the same in relation to their goods. (xiii)The applicant is a "person aggrieved" and entitled to file this application as the registered proprietors have filed the above mentioned Civil Suit of 1999 for infringement and passing off. The applicant is the prior user and coined the trade mark "REAL GOLDEN TEA/GOLDEN CHA" which is in use since 1977 including its predecessors. The applicant has spent huge amounts of money popularising this trade mark. The respondents are using the trade mark "GOLDEN TEA" and the word "RAVI'S" remains hidden and escapes the attention of the purchasers. "GOLDEN" is common to the trade disclosing the grade of tea and purely descriptive in itself. The entire label of the respondent consists of descriptive matters and there is not a single element of a mark that is distinctive or capable of distinguishing the goods of the respondents.
(2.) IN view of the foregoing, the applicants are put to unbearable hardship. The balance of convenience is in favour of the applicant and continuance of the present registration of the impugned trade mark is likely to cause irreparable loss and injury. Therefore the impugned trade mark be removed from the register.
(3.) THE defence of the respondent/ registered proprietor is summarised as follows: (i) the instant application for rectification is a counter blast to the pending Civil Suit filed by the respondent against the applicant. As the same is an abuse of the process of law the infringer cannot claim any equitable or discretionary relief from the hands of the Hon'ble Board with a view to escape from the infringement action and therefore the impugned application is devoid in law. (ii) the applicant has not come before this Board with a clean hand having suppressed materially important facts. (iii)the respondent is the registered proprietor of the trade mark "RAVI'S GOLDEN TEA" under No.704811 in Class 30 as of 17th April 1996. The registration has been renewed and is valid and will subsist up to 17th April 2016. (iv)The registered proprietors state that the applicant is not a "person aggrieved" to file this application for rectification either under Section 47 or Section 57 of the Act as they have not shown any valid cause of action. The respondent state that the instant application is contrary to the true spirit, scope and purport of the provisions of Section 31 and Section 32 of the Act. The respondents are in the business of packing and selling Tea' under the poly -pack pouch in the partnership firm under the name and style of RAVI ENTERPRISE since 1992. The trade mark RAVI'S GOLDEN TEA has acquired immense popularity and the turn over as of 2008 -2009 was over Rs.13 crores. The respondent's predecessors have acquired the copyrights for conducting the trade in RAVI'S GOLDEN TEA/GOLDEN CHA. The matter was listed for hearing on 21st June, 2012. We have heard both the learned counsel and gone through the pleading and citations relied on.;