T.R. Subramanian, Technical Member - (1.) THIS is an appeal against the order of the Deputy Registrar of Trade Marks, New Delhi dated 5th October 1994 following the opposition No. DEL-7758 filed by the respondents opposing the registration of the appellants' trade mark application No. 487904.
(2.) The appellants M/s. Swastik Pipes Limited, New Delhi had filed trade mark application No. 487904 on 23rd March 1988 at the Trade Marks Registry, New Delhi for registering the trade mark consisting of the letters T.T. enclosed in an oval and the words 'Swastik' in respect of steel pipes and tubes included in Class 6 claiming user from 1975. The mark was ordered to be associated with No. 417580 and advertised in the Trade Marks Journal 1029 dated 16th April 1992. On 17.6.1992, M/s. T.T. Industries, the respondent's hereinabove filed a notice of opposition opposing the registration of the appellant's trade mark. They have submitted that they are the registered proprietors of the trade mark containing the letters T.T. under No. 334423 dated 13.3.1978, No. 266085 dated 3.8.1970, No. 277801 dated 20.1.1972, No. 334422 dated 13.3.1978 and No. 432270. The above trade marks are valid and subsisting. They have further submitted that they have also applied for registration of the same trade mark containing the letters T.T. in Classes 18, 17 and 25. They submitted that they have been carrying on the business of manufacturing and marketing of all kinds of hosiery goods such as Genjis, Jangias, Bras, socks, etc., in the name and style of M/s. T.T. Industries since the year 1968. They have submitted that the letters T.T. of the appellant's mark with or without the oval border is identical to the opponents' trade mark and that the appellants have adopted the mark with a view to trade upon and benefit from the reputation and goodwill attached to the opponents trade mark. They further submitted that the registration of the trade mark applied for by the applicants is contrary to the provisions of Sections 9, 11(a), 11(e), 12(1) and 18 of the Act.
(3.) ON 30.4.1993, the appellants filed the counter statement denying all the material averments in the notice of opposition and contended that they adopted the trade mark since the year 1975 in respect of steel pipes and tubes. They further submitted that the goods of the appellants and that of the respondents are different. The respondents filed their evidence. Thereafter the appellants also filed their evidence which was followed by filing of the reply evidence by the respondents. The case was heard by the Deputy Registrar of Trade Marks on 2.9.1994 and by his order dated 5th October 1994, he had allowed the opposition and refused registration of the appellant's trade mark application. The appellants filed an appeal (CM (M)/551/94) before the Hon'ble High Court of Delhi, which was transferred to the Intellectual Property Appellate Board (IPAB). The appeal was heard by the Board on 23rd January 2004.;