V. Ravi - (1.) The applicant are seeking the removal of the registered trade mark BEMISAL under 868081 in class 30 from the Register. The said mark has been registered in respect of rice as a "proposed to be used" trade mark. The grounds for seeking the cancellation of the impugned mark are summarized below: -
(2.) THE applicant through its predecessor Shri Prem Manchanda the sole proprietor thereof in 1979 commenced the business under the name and style of P.K. Enterprises, Delhi and in 1993 adopted BEMISAL in respect of rice goods and considering that the said word convey in HINDI/URDU the meaning MATHCLESS/HAVING NO COMPARISON to describe and indicate the kind and quality of rice and therefore chose not to file an application for its registration under the Trade Marks Act. Shri Prem Manchanda in 1994 promoted another company named P.K. Agro Enterprises Pvt. Ltd. and registered the same with the Registrar of Companies on 16th May, 1994 and with effect from 29th December, 1994 the name of said company was changed as P.K. OVERSEAS PVT. LTD. (the applicant herein) The applicant submit that the trade mark BEMISAL being descriptive as to the nature of goods i.e. rice and other articles, the said word can be used only to indicate the kind, quality of the goods. Therefore registration granted to the respondent is contrary to the provision of Sections 9 and 30(2) of the Trade Marks Act. Further, as the said trade mark was adopted by the applicant in 1993 the same is much prior to the respondent's alleged adoption in 1999. Therefore the impugned registration is contrary to the provisions of Section 11 of the Act and accordingly no exclusive or proprietary right can be granted to one person in respect of word BEMISAL. The respondent is not the first adopter of the said trade mark BEMISAL and the impugned trade mark is not distinctive and therefore the respondent is not entitled to claim the proprietary right thereof under Section 18(1) of the Act.
(3.) AFTER the commencement of present proceedings, the applicant has filed two applications under No. 1120954 and No. 1482415 in class 30 but it was opposed by the respondent herein to dismiss the applications in respect of the trade mark BEMISAL. The applicant rely upon the following judgments in support of provision of Section 9 and 30(2) of the Trade Marks Act. ;