PRABHA SRIDEVAN,CHAIRMAN - (1.) THIS review petition has been filed against the order dated 28 -01 -2010 dismissing ORA/51/2008/TM/CH.
(2.) THIS Review Petition has been numbered subject to the issue of maintainability.
(3.) THE learned Counsel for the Review petitioner submitted that the Review Petition has been using the mark Aachi since 1995. It applied for registration of the mark on 1 -11 -2004. According to the Learned Counsel the mark Aachi Masala has become synonymous with the Review Petitioner's goods and the business and reputation had grown immensely. The Review Petitioner found that the Respondent had marketed mineral water and soft drink under the mark Aachi which is alleged to be a blatant infringement. So the ORA was filed. No counter statement was filed and no one appeared before the IPAB when it heard the ORA. The grievance of the Review Petitioner is that the IPAB had accepted the claim of the respondent regarding user from 1995 without any evidence. The learned Counsel submitted that this Board had ordered removal of marks where user had not been proved in several cases. It is also the grievance of the Review Petitioner that though the user of the Review Petitioner was never a fact in issue as it was uncontroverted the IPAB had held that the Review Petitioner had not proved its user. The Learned Counsel submitted that the respondent's mark had expired and ceased to exist but the finding regarding the user of the Review Petitioner was an error apparent.;