Raghbir Singh, Vice-Chairman - (1.) THIS petition for rectification of register was filed under Sections 32, 46, 56, 107 and 108 of the Trade and Merchandise Marks Act, 1958 in the High Court of Judicature at Madras as O.P. No. 352/2003 and has now been transferred to this Board in terms of Section 100 of the Trade Marks Act, 1999 and has been numbered as TRA/41/2003.
(2.) The petitioner is a holder of trade mark 'KANYA' as a word mark under registration No. 584307B dated 6th November, 1992 in class 3 for detergents, including cleansing agents for special purposes, car shampoos, perfumery, deodorants, hair care products, personal care products, cosmetics and toiletries, face creams, lip salves, preparations for cleaning teeth, mouth washes, sunscreen creams, lotions, shaving cream, after shave lotion, nail polishes, pomades, brilliantines, cleaning and polishing preparations and 'KANYA' label mark registered under No. 598586B dated 3rd June, 1993 included in class 5 in respect of herbal medicinal formulations, medicaments and pharmaceutical preparations. The petitioner started sale of anti-lice hair care powder under the trade mark 'KANYA' in May, 1993 and claims to have advertised the mark extensively in television, magazines and other modes. The first respondent holds a registration of the trade mark 'KANYA BEAUTY PARLOUR' with the device of a hand mirror under No. 703898 dated 2.4.1996 in class 16 in respect of 'paper and paper articles, books, printed materials, printed publications, brochures, pamphlets and other stationery items included in class 16. The first respondent claimed user of the mark since December, 1981. The petitioner submitted that the first respondent has never published any book, pamphlet or brochure and does not carry on the business of book publication. The first respondent for the last more than five years and one month has not used the trade mark 'KANYA BEAUTY PARLOUR' with the device of hand mirror in respect of books, pamphlets, printed publications etc., in the course of trade for valuable consideration. Thus, on the ground of continuous non-use for more than last five years and one month, the trade mark 'KANYA BEAUTY PARLOUR' with the device of hand mirror ought to be rectified under Section 46(1) of the Act.
(3.) THE petitioner claims that the first respondent filed false affidavit dated 17th February, 2001 before the second respondent for registration of trade mark 'KANYA BEAUTY PARLOUR' in class 16 setting out sales figure since the year 1983 relating to paper articles, books, printed matters etc. She had never been involved in the business of printing of books etc. THE claims of the first respondent in her application No. 703898 had been that she had been using the trade mark 'KANYA BEAUTY PARLOUR' since December, 1981 in respect of books, publications, printed stationery etc. THE petitioner further claims that the first respondent still does not have an intention to carry on the business of books, printed publications and stationery. THE first respondent had no bona fide intention to use the trade mark 'KANYA BEAUTY PARLOUR' in relation, to goods for which it is registered for the time being and has not made any bona fide use for the last more than five years and one month continuously.;