V.RAVI,TECHNICAL MEMBER - (1.) THE applicants herein are seeking removal from the register of two trade mark NEW LITTLE GENIUS Label under No. 1070125 in class 16 and NEW LITTLE GENIUS Label under No. 1049022 in class 28 in the name of the respondent. The grounds for seeking cancellation are briefly mentioned below: - (i) The applicants are engaged in the business of manufacturing, trading, marketing, exporting, processing, assembling and dealing in all kinds of toys, gift items, sports items and novelties whether made of wood, clay, stone, plastic, metal, fur, rubber, leather, glass, cloth, cotton, foam or otherwise. (ii) A partnership firm under the name and style "LITTLE GENIUS" was constituted in 1995 by a Deed dated 23/09/1995 consisting of the applicant (Shri Raj Kumar Gautam) and the respondent herein (Shri Ravi Kumar). Subsequently, on 03/02/1999 Shri Naresh Kumar Gautam was also inducted as a partner. (iii) The applicant has honestly adopted the word LITTLE GENIUS as part of his trade name with an original artistic label with the device of a Tortoise'. (iv) This partnership firm filed an application for registration of the above -mentioned trade mark under No. 837290 in class 28 for registration of "LITTLE GENIUS". (v) The partnership continued its business till April 2001. However, it has not been dissolved nor its affairs, properties including the trade mark, trade name, copy right or goodwill or its accounts are yet to be settled. (vi) The respondents herein trading as NEW LITTLE GENIUS malafidely, fraudulently and in derogation of the proprietary rights of the firm obtained registration of the trade mark NEW LITTLE GENIUS label mark with the device of tortoise under No. 1070125 in class 16 (in relation to printed matters, publications, periodical paper and paper articles, stationery magazines, book brochures, pends, pencils and ink) and under No. 1049022 in class 28 (in relation to wooden teaching aids and games). (vii) The registration of the impugned marks are contrary to law and hence liable to be rectified and expunged from the register on numerous grounds, which are given below: - (a) The applicants were not aware of the registration of both the impugned trade marks and it has been obtained behind their back. (b) It is only when a legal notice was received from the respondent on 24/01/2006 that the applicant became aware of the registration of the impugned marks. The respondent therefore, has concealed and suppressed this material fact and fraudulently obtained the registration of the impugned marks. (c) The respondent cannot claim exclusive right of the impugned trade mark which is exclusively the property of the partnership firm and affairs of the said partnership has not yet been settled. (d) On receipt of the above mentioned legal notice of 24/01/2006, the applicant filed suitable reply and have also lodged a caveat petition before the Hon'ble High Court of Delhi and District Court, Delhi in anticipation for a suit for infringement and passing off and accordingly they have the right to institute the present cancellation proceedings. (e) The applicant submits that the impugned registrations have been obtained by fraud and by wilful suggestio falsi andsuppressio veri and accordingly the impugned marks are wrongly remaining in the register and without sufficient cause. The applicants has equal right to the impugned mark which is identical with and deceptively similar in each and every respect with the mark of the partnership firm. (f) The respondents obtained registration falsely claiming alleged use of the impugned marks from 01/01/1995 which is even prior to the use claimed by the partnership firm in its application. The respondents have thus produced false documents leading to the illegal registration of impugned trade marks. The impugned marks have registered behind the back and without the consent of the applicants. There is no special circumstances that exists to accord protection to the respondent under section 12 of the Act. The registrations of the impugned marks are contrary to provisions under section 18 of the Act. (viii) In the light of the foregoing and in the interest of justice, the applicants pray that the impugned marks should be removed from the register forthwith II. The case of the answering respondents is summarised below: - a. The respondents are the registered proprietors of the trade mark NEW LITTLE GENIUS under No. 1070125 and under No. 1049022 respectively which was filed on 01/10/2001 in the Trade Marks Registry. The respondents submit that the said application was made with the knowledge and consent by the applicants. The impugned petition has been filed five years after knowledge of filing and six months from the date of registration and so is liable to be dismissed on account of lack of bonafide and acquiescence since the respondents have been using the marks continuously since 2001 without any hindrance by the applicants herein. b. The respondent submit that it was verbally agreed between the applicants and the respondent that at the termination of the Partnership Deed, the respondent would be entitled to use NEW LITTLE GENIUS from 2001. The respondent further submits that the applicant had consented to the use as of 1995 while applying for the registration of the trade mark NEW LITTLE GENIUS. The impugned mark was accepted and published in the Trade Marks Journal in 2004. After this, the attitude of the applicant suddenly changed. The applicants wanted to extract the profits earned through the new trade mark NEW LITTLE GENIUS of the respondent. c. The applicants have waived all the right, goodwill and interest in the said partnership at the time of its termination. It is pertinent to mention here that after the end of partnership, the applicant had formed his own company. It is submitted that had the applicant acquired the goodwill, assets, interest of the partnership firm namely M/s. Little Genius then the same should and ought to have been mentioned in the Memorandum and Articles of Association of the applicant's Company. d. The partnership firm of the applicant is not in existence and the same has ended. As such, the applicants have no locus standi to file the cancellation petition. e. The applicants have not come to the Board with clean hands and has made the wrong statement deliberately and knowingly. It is submitted that the applicants have misrepresented to the Board in respect of material particulars concerning the subject petition wherein the applicants have falsely claimed about the existence of the partnership firm and its purported right over the trade mark LITTLE GENIUS. f. The respondent also state that the impugned cancellation petition has not been signed, verified and filed by a proper and duly authorised person. g. The petition is without any cause of action and therefore liable to be dismissed. III. The respondents further stated that the accounts and affairs of the earlier partnership has been settled with the applicant with a clear understanding that the respondents will use a new trade mark NEW LITTLE GENIUS from 2001 without any hindrance and interference of the applicant herein and also on the basis of the use of the new trade mark as of 1st January, 1995. In view of the foregoing, the respondents pray that both the applications for rectification be dismissed as it is totally untenable in law, frivolous and clearly an after thought. IV. The matter was listed for hearing on four earlier occasions and was adjourned each time at the request of the respondents. It came once again before us on 16/07/2013, when the counsel for the applicant was present and the respondent set ex parte. V. The following citations were relied on by the Learned Counsel for the applicant: - (1) [1966] 3SCR 400 - Addanki Narayanappa and Anr. Vs. Bhaskara Krishtappa and 13 Ors. - In this case, it was held that " during the subsistence of the partnership, no partner can deal with any portion of the property as his own nor can he assign his interest in a specific item of the partnership property to anyone else." (2) 2007 (34) PTC 731 (IPAB) - Jain Doors Pvt. Ltd. Vs. Suresh Kumar Jain - Here, it is decided by the Board that at para 19that "The next point that arises for consideration is whether the registration has been obtained by fraud and false statement as to user. We have looked into the evidence like invoices, letters, etc., produced by the respondent to prove their user and found that the respondent has only been a dealer of the product Laminated Veneer Lumber since the year 1997 and no documents to show that they are the owners of the trade mark since 1.4.1995 as claimed in their application for registration. We, therefore, observe that the registration has been obtained by false statement and fraud." VI. The applicants have received a Legal Notice from the respondent not to use LITTLE GENIUS as its trade mark. This mark was previously used by both partie The parties are in litigation. At this stage, we are not in a position to determine whose story is to be trusted? The respondents allege that past is a closed chapter. The applicants allege that the respondent is only indulging in trafficking its trade mark and sugar -coating the adoption of the impugned marks based on wholly bogus claim by marginally tweaking the jointly owned trade mark now flaunted as NEW LITTLE GENIUS'. Sufficient grounds have been raised in the pleadings by the applicant to displace the prima facie proof of ownership of the impugned marks of the respondent. Hence, the applicant have necessary locus to be treated as an aggrieved person. VII. For removal of a registered trade mark there needs to be some legal basis. The routine objections relied on relates to 9, 11, 12, 18 and 57 of the Act. The disqualification under section 47 (non use and no bona fide use) has not been invoked in the instant case as the fight and right to use LITTLE GENIUS or NEW LITTLE GENIUS is staked both by the applicant and the respondent. Since a near identical mark is being used by the respondent, we need to look at the matter with heightened scrutiny. Anyone with a smattering of familiarity of the trade marks law would realise that a mark has to pass the test of capability to distinguish' the goods of a person to overcome the hurdle under 9 of the Act. The sense of animus and mutual recrimination between the two parties is all too evident. If LITTLE GENIUS' was being used in the market first, then no amount of justification can condone or approve the adoption, use or registration by a subsequent applicant for NEW LITTLE GENIUS'. Both parties are in competition with each other in the market place. The presence of both the mark in the market will inevitably cause perpetual confusion. Therefore, the impugned marks cannot perform its essential function i.e., to guarantee the identity of the origin of goods of the respondent. It cannot therefore, qualify for registration and is clearly hit by tion 9(1)(a) of the Act. When we put ourselves in the shoes of a common man we note the impugned marks cannot communicate the fact that respondents goods are not those of the applicant who also deal in the same goods. VIII. The next objection to be addressed is under 11 on relative ground Here the competing goods are identical. The rival marks are LITTLE GENIUS' and NEW LITTLE GENIUS'. Without any doubt visually, phonetically and conceptually both trade marks are near identical. The respondent had knowledge of the use of LITTLE GENIUS' prior to the filing of impugned mark. There is no material on record to prove that the applicant consented to the use of NEW LITTLE GENIUS. There is no dissolution deed on record. Since the partnership continues to subsist in the eyes of law despite its termination in 2001, the adoption of the very same trade mark by the respondent amounts to rank dishonesty and unacceptable and unfair commercial behaviour to the point of bad faith. In trade marks law similarity of marks by itself is not significant. What is of critical importance is the similarity must result in a likelihood of confusion or deception. Judge by any test, the impugned mark is clearly barred 11(1) of the Act. IX. The respondent are also not entitled to the protection 12 which overrides the generalities of prohibitions contained 11 of the . Under section 12, prior user before the date of application by a rival mark is also a relevant consideration. The impugned mark was applied for on 01/10/2001. It is also an admitted position that upto April 2001, both applicant and respondent jointly used the trade mark LITTLE GENIUS'. In view of this alleged use since 1995 claimed by the respondent is totally false. Such user claim is neither honest nor concurrent. Thus section 12 cannot come to the rescue of the respondent. X. Lastly, on the issue of claim of proprietorship of the impugned mark 18(1), the fact LITTLE GENIUS' is the property of the partnership firm exposes the pretense that addition of a prefix NEW' to it would give the colour of a different mark to the respondent. When the respondent blatantly copies the mark of another, he must take the consequence. The chief difficulty confronting the respondent in law is (section 24) it does not permit one of the joint proprietor to grab the trade mark owned together with others. The mere addition of an adjective NEW' does not change anything. Such adoption is inherently vicious, mala fide, illegal and lacking in commercial scruples. There is not a scrap of paper on record to substantiate prior consent of applicant to adopt the impugned mark. Moreover, securing registration with amended claim of use of the impugned mark as on 01/01/1995 when the partnership itself was constituted on 01/04/1995 purportedly with consent of applicant, (an unproven allegation) completely exposes the respondents. They are masquerading on an illegally secured registration and threatening the applicants with legal consequences. Hence it should go. The fact that a large number of such dubious marks slips into the register is a parallel reality which the Registrar should seriously address with utmost expedition. XI. In the result, both ORA/22 and 24/2006/TM/DEL are allowed and registered trade marks NEW LITTLE GENIUS' under No. 1070125 in class 16 and 1049022 in class 28 are expunged from the register. There is no order as to cost. ;