S. Usha - (1.) THE instant appeal arises out of the order dated 14.05.2012 passed by the Assistant Registrar of Trade Marks under Section 57 (4) of the Trade Marks Act, 1999 removing the registered trade mark "SAMAR SUHANA" under No. 1881086 in Class 11. The brief facts of the case are as follows: The appellant is the sole proprietor of the firm M/s. Vepeejay Electrical Industries and is engaged in the business of manufacturing and marketing Cooler Motors, Cooler Pumps, A.C. Fans, Exhaust Fans, Desert Coolers and parts thereof, Geyser Heating Elements and other Electrical Appliances. The appellant is the registered proprietor of the trade mark Suhana under No. 572598 in class 11 as of 05.05.1992. The said mark was initially registered in the name of the appellant's father and later assigned in favour of the appellant. Necessary request in Form TM -23 has been filed and is pending before the Registrar of Trade Marks. The Trade Mark registered has been duly renewed and validly subsisting.
(2.) THE appellant along with the predecessors has been using the trade mark "Suhana" since the year 1989. On 07.10.2009, the appellant had adopted and started using the trade mark Samar Suhana in respect of the goods falling in class 11. The trade mark Samar Suhana was registered under No. 1881086 in class 11 as of 06.11.2009. In July, 2009, the appellant came to know that the respondent had adopted and commenced the use of a deceptively similar trade mark Samar Suhana in respect of the same goods. The appellants therefore filed a Civil Suit No. 2023 of 2009 in the High Court of Delhi against the respondents. On 28.10.2009 the Hon'ble High Court of Delhi was pleased to pass an order of injunction against the respondent and the same was confirmed on 06.08.2010.
(3.) THE respondent filed an application before the Registrar of Trade Marks to rectify the register and remove the trade mark No. 1881086 in class 11. The appellant was not put on notice of the application for removal of the trade mark. The appellant came to know of the same through the website of the Trade Mark Registry.;