V.RAVI - (1.) THE applicant are seeking removal from the register of the trade mark HIMANI MEMOPLUS under no. 617915 in class 5 in relation to medicinal preparations. It is alleged that the registration of the impugned mark was obtained fraudulently, malafidely and on false claims, assertion and documents all of which amount to a fraud. The respondent had obtained the registration of the impugned mark on the basis of forged and fabricated documents claiming user since September, 1992 which is false. It is alleged that the respondent had no user of the impugned mark.
(2.) (a) The respondent had filed a suit under C.S. OS No.74/2007 before the Hon'ble District Court, Delhi. The applicant do not admit the content of any of the documents filed by the respondent in the said suit. The applicant state that the grounds and averments made in the instant cancellation petition are in the alternative and without prejudice to the averments made in the said suit. As per the records of the suit, the FDA Licensee (issued by the Madhya Pradesh Govt.) the respondent do not have any user of the mark MEMOPLUS prior to 2005. In the suit itself, the respondent have admitted that the mark MEMOPLUS is a descriptive word mark. Further, the respondent had admitted in the Suit that they were dealing in the mark MEMOPLUS only. (b) the impugned mark was not distinctive of the impugned goods either at the time of its application or its registration or even till date and so hit by Section 9 of the Act. (c) the brouchers filed by the respondent in the above mentioned suit show that the impugned relevant products of respondent bears the title MEMOPLUS for memory booster. (d) the applicant allege that all the bills /invoices filed by the respondent in the said suit pertains to the trade mark MEMOPLUS only and these bills pertain only for the years 2005 to 2007. The records therefore speak for themselves that the respondent have not used the trade mark MEMOPLUS prior to 2005. (e) The user claim since 1992 by the respondent is accordingly false, tainted and void ab -initio. (f)the impugned mark HIMANI MEMOPLUS is identical with applicants trade mark label MEMOPLUS. The applicant are the prior adopter and exclusive user of the mark MEMOPLUS in respect of the ayurvedic medicine and are the registered proprietor thereof since 04.01.1991 which is much prior to the impugned registration dated 28.01.1994. The impugned mark is therefore, barred by Section 11(1) of the Act. (g) the respondent have deliberately adopted the impugned mark to encash upon the tremendous goodwill and reputation of the applicant's trade mark with a view to derive illegal gains. (h) there are no special circumstances or factors justifying the co -existence of the impugned mark in the register. The respondent cannot be the proprietor of the impugned mark. (i) the registration of the impugned mark is barred by Section 9,11 & 18 of the Act and it is wrongly remaining on the register and without sufficient cause. (j) in the interest of the purity of the register the impugned mark should be expunged forthwith.
(3.) THE case of the respondent is as follows: - a. They are well known manufacturers, merchants and exporters of medicated oil, cosmetics including lotion, soaps, powder, perfumery and other medical preparations under various trade mark including HIMANI MEMOPLUS. b. the respondent have been using the impugned mark over the last several years continuously in respect of memory syrups. They have been selling these syrups and have achieved sales to the tune of about Rs. 20 lakhs per annum during 2005 -06 & 2006 -07. c. the applicant have filed this petition on the strength of a Suit under CS -(OS) 74/2007 pending before the District Judge, Delhi without even ascertaining whether in fact they are a person aggrieved'. d. The respondent state that the competing marks are totally different. The applicant's trade mark is CHIRAYU MEMOPLUS alongwith the picture of brain and a +sign. On the other hand, the impugned mark is Memoplus along with the respondents well -known mark HIMANI depicted with a picture of the shining electrical bulb and the mark as a whole is distinctive and cannot cause confusion with the applicant's trade mark. Further, the trade mark MEMOPLUS is generic in nature and no exclusive right on the same can be claimed by anyone. e. the respondent has adopted the trade mark HIMANI MEMOPLUS honestly with bonafide intention to use the same and no case has been made out for the removal of the impugned mark. The matter came up before us on 06.12.2012. We have heard arguments of the respective counsel and gone through the pleading, documents and the records.;