V.RAVI,TECHNICAL MEMBER - (1.) THE applicant herein is seeking the removal of the registered trade mark FOCUS VISION CARE which was applied for registration on 10th January 1987 under No.479297 in Class 9 claiming user since April, 1986. This trade mark was published in the TM - Journal with disclaimer condition "Registration of this trade mark shall give no right to the exclusive use of the device of optical lenses and expression "Vision Care". In effect this means the registered proprietors were granted exclusive rights to the trade mark "FOCUS." Further the effective period of use prior to filing of the impugned mark was just 18 months in respect of a highly descriptive and laudatory word which is contrary to law and against the basic tenets of trade marks jurisprudence. The registration has been granted for all types of optical goods including lenses for a generic word and it cannot be sustained in law. There are hundreds of items under the category optical goods and therefore the specification of goods on the basis of which registration was granted is vague and not valid in law. The impugned mark has been also used by the respondent herein as a slogan in their advertisement mentioned in pages 29 and 30 of the Counter Statement which reads "9 years of Focus Vision and we have 2,30,240 eyes to thank".
(2.) TO compound the folly not a single piece of documentary evidence is on record to establish even the minimal use of allegedly 18 months prior to filing date has been furnished. The assessment order by the Sales Tax Department, New Delhi in support of use mentioned in the counter statement pertains to the period 1993 -94 which is after the date of filing of the impugned mark. Secondly, the sales tax assessment order does not show any use of the trade mark FOCUS VISION CARE. Thirdly, the assessment order is not in respect of manufacturing of all types of optical goods but is in relation to "Resale of optical goods" as testified in Exhibit 12 of the counter statement.
(3.) THE applicants have applied for registration of the trade mark FOCUS OPTIC under No.1354775 which has been opposed by the respondent herein. The applicant submits that the respondents have not used the impugned mark since April, 1986. The impugned marks is therefore liable to be removed from the register on the ground of non user for a continuous period of more than 5 years and not a single piece of document has been furnished to establish that they are selling optical goods under the trade mark FOCUS VISION CARE.;