S. Jagadeesani, Chairman - (1.) THE appeal is directed against the order of the Assistant Registrar of Trade Marks, dated 4.9.1997, allowing the objection raised by the respondent for the registration of the appellant's trade mark "VISHNU CEMENT".
(2.) The appellant herein filed an application on 29.5.1986, to register the mark consisting of the words "VISHNU CEMENT" with a device of a bag enclosing a device of a conch, letter 'V' within the cog-wheel on a label, in respect of Portland cement in Class 19. After some preliminary objection, the mark was advertised as accepted in the trade mark journal on 1.9.1991. The respondent herein filed a notice of opposition objecting to the registration of the appellant's mark on the following grounds:- 1. that VISHNU is a very common personal name and its registration would contravene the provisions of Section 9(1)(d) of the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as the Act); 2. that on the relevant date, applicants' mark was only proposed to be used and, therefore, the applicants cannot prove the factual distinctiveness of the mark; That VISHNU is the second person of the Hindu Trinity, representing the principle of stability and as such the use of word Vishnu is likely to bear a direct reference to the character and quality of the goods. The use of the trade mark is likely to hurt the religious susceptibility of major Hindu community and as such it offends Section 11 (d) of the Act as well as Section 11 (e) also. 3. The Assistant Registrar of Trade Marks under the impugned order upheld the objections of the respondents That the registration of the trade mark is barred under Section 9(1)(d) of the Act since the word VISHNU being very common popular personal name in India. The Assistant Registrar of Trade Marks further held That the mark of the appellant cannot be considered to be a distinctive one within the meaning of Section 9(1)(e) of the Act. However, the Assistant Registrar, Trade Marks, rejected the objections of the respondent in respect of Sections 9(1)(a), 11(d) and 11(e) of the Act. Ultimately, the objections of the respondent was upheld mainly on the ground That the appellant's mark attracts Section (1)(d) of the Act That the name is a very common personal name in India.
(3.) THE learned counsel for the appellant contended that VISHNU is the name of Hindu God which is familiarly being used to name the individual and also to name the trade. When that be so, the reasoning of the Assistant Registrar of Trade Marks that it is a common popular personal name is not correct and cannot be accepted. Moreover, the respondent did not raise any objection with regard to the similarity of the trade mark including the trade name with that of their name. When there is no plea with regard to the confusion in the identity of the commodity of the appellants by the use of the mark sought to be registered, the Assistant Registrar of Trade Marks ought not to have entertained the objections raised by the respondent.;