Raghbir Singh, Vice-chairman - (1.) CM(M) No. 418/94, CM (M) No. 419/94, CM(M) No. 454/94 and CM(M) No. 99/95 filed in the High Court of Delhi have been transferred to this Board in terms of Section 100 of the Trade Marks Act, 1999 and have been numbered as T.A. Nos. 94, 95, 97 and 104/TM/DEL respectively.
(2.) Transferred Appeal Nos. 95 and 104 relate to an application filed by the respondent M/s Aggarwal Sweet Corner vide application No. 453309 for registration of trade mark 'Aggarwal Sweet Corner' in class 30 in respect of sweets and namkeens. The mark was claimed to be used since 1.6.84. The mark was advertised in the Trade Mark Journal No. 980 dated 1.4.90 at page 55 in due course, subject to the disclaimer of the word 'Corner' and subject to association with applicant's already pending mark No. 453308. The appellant in Appeal No. TA/95 filed opposition No. DEL 6766 opposing the registration of the trade mark on the grounds of Sections 9, 11(a), 11(e) and 18 of the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as the Act). The appellant contended that they are carrying on business in sweets since 15.10.86. Appellant in TA No. 104 filed a notice of opposition on 2.5.90 on the grounds of Sections 9, 11(a) 11(e) and 18(1) of the Act. Appellant claims that they have been manufacturing sweets and namkeens under the trade mark Aggarwal Sweet Corner since the year 1986. They claim that the mark applied for is identical and deceptively similar to that of their mark. In TA/95 the Assistant Registrar of Trade Marks held hearing on 10.8.94. In the hearing a suggestion was made that a disclaimer about the word 'Sweet' besides the word 'Corner' should also be made. Learned counsel for the respondent readily agreed for it and the Assistant Registrar accordingly ordered that both the words 'Sweet' and 'Corner' shall be disclaimed. In conclusion, the Assistant Registrar disallowed the opposition and ordered for registration of application No. 453309 with the disclaimer of the word 'Sweet' and 'Corner'.
(3.) THE matter in TA/104 was heard by the Deputy Registrar on 16.11.94. Learned Deputy Registrar held that in matter of Section 9 the applicant has filed evidence of user since 1.6.84 which is sufficient for registration and accordingly he overruled the opponent's objection under Section 9 of the Act. In matter of examination under Section 11 (a) and (e), the Deputy Registrar held that the opponents have merely filed an affidavit in relation to the evidence of user and reputation of their mark. It does not give any details about the annual sales whereas the applicant has given evidence of user since 1.6.84. Accordingly, he overruled the opponent's objection under Clauses (a) and (e) of Section 11. In matter of objection under Section 18(1) of the Act, the Deputy Registrar held that since the applicant had proved user and reputation of the mark applied for, he was accordingly entitled to proprietorship of the mark under Section 18(1) of the Act. THE Deputy Registrar held that the opponent's claim that the mark (trading style) as having been adopted and used since 1986. However, no evidentiary documents have been filed to prove their user since 1986 as claimed, whereas the impugned application was filed on 30.4.86 with user claimed since 1.6.1984. Applicants have adduced sufficient evidence since 1984 onwards containing several documents, namely, copies of purchase orders, copies of invoices, copies of advertisements, copies of sales tax and income tax orders, copies of bills from advertisers, copies of analysis reports issued by Delhi Administration, copies of balance sheet and copies of orders received from customers. THE Deputy Registrar held that the opponent claims to be trading in the name and style of M/s Aggarwal Sweet Corner at Patel Nagar, New Delhi but they have nowhere shown that their goods are being sold/marketed under the trade mark 'Aggarwal Sweet Corner'. Hence the opponents have no trade mark other than the trading style which cannot be treated as a trade mark in the absence of documentary evidence. Accordingly, he disallowed the opposition and ordered that application No. 453309 in class 30 shall proceed for registration.;