V.RAVI,TECHNICAL MEMBER - (1.) THE applicants herein are seeking removal from the register of registered trade mark under no. 846440 -B in class 30 in the name of the partnership firm consisting of Manjula Pushpavadan Kandoi, Umesh Pushpavadan Kandoi and Jitesh Pushpavadan Kandoi all trading as SHRI JAGDISH FARSAN. In fact, two applications for cancellation of the impugned mark has been filed under no ORA/119 & ORA/120 by two different partners of the same applicants firm herein. In this context, the same applicant firm had sought the removal of the very same trade mark of the respondent through two other partners under no. ORA/08/2005/TM/AMD & ORA/134/2006 TM/AMD in respect of registered trade mark no. 486584 for an identical mark for identical goods which was dismissed by the Board as no case was made out.
(2.) THE only point of difference is the cancellation of the impugned mark is sought in the name of different partners of the same applicants firm in respect of an identical trade mark registered under a different application number in the same class. But the issues, pleadings, evidences and arguments advanced in the present proceeding is identical to what had been set out in ORA/08/2005/TM/AMD & ORA/134/2006 TM/AMD. We therefore, do not intend to exhaustively narrate the sequence of events set out except to briefly outline the contours of applicant's case and respondents defense for easy understanding.
(3.) THE case of the applicant is briefly as follows: - The applicant are carrying on business of manufacturing and sale of sweet, farsan and namkeen. The respondent/ registered proprietor has filed a suit in the District Court, Baroda under C.S.No.9/2009 for infringement and passing off on the strength of the impugned registration. The Hon'ble Court was pleased to issue notice to the applicant and therefore he is a person aggrieved' to seek cancellation of impugned mark. The word Jagdish is the name of a Hindu God in India and many traders have adopted it as a trade mark. In fact there are 13 such entities which are using Jagdish as a trade mark in Baroda. Thus the respondent cannot claim exclusive monopoly right on the same. The applicant state that he took a franchise agreement from one Jagdishchandra Prahladprasad Shah( who was in fact one of the applicant in ORA/08/2005 referred to earlier) to market their farsan and sweet products under the trade mark JAGADISH and it is the applicants livelihood and business. The specific grounds for seeking removal of the impugned mark are detailed below: i) the impugned mark is registered in the name of three partners but there are in fact other joint owners/co -owners as is clear from the suit filed against the applicant in the city Civil Court at Baroda. ii) the impugned mark is only proposed to be used whereas in the suit the claim of user date are different. Before the registrar of trade mark the respondents have claimed users since 1986 whereas in the suit it is mentioned as 19th March, 1999 and hence the registration has been obtained by fraud based on false user claim. iii) The impugned mark is common to trade used by more than 10 person in the market and therefore it is contrary to sections 9, 11 and 12 of the Act. The applicant herein have been using the trade mark Jagdish for the same good to the knowledge of the respondent and therefore filing of suit against the applicant is an abuse in the process of law. iv) The respondent have not sought correction of the Trade Marks Journal and the mark as shown in the registration certificate is different from the trade mark published in the Journal. In view of the foregoing, the applicants seek the removal of the impugned mark in the name of the respondent. On verification, the mark as published and as registered are one and the same. The case of the respondent is one of complete denial of all the averments, contentions, claims and allegations made by the applicant. The respondents have given very detailed grounds in support of registration in the counter statement. These would require to be looked into if we are to examine the case on merits.;