T.R. Subramanian, Technical Member - (1.) THIS is an appeal filed by the Appellants against the order of the Deputy Registrar of Trade Marks dated 1st October 1990 dismissing the opposition No. DEL 4675 filed by the appellants opposing the registration of the respondents' trade mark application No. 402484B in Class 7.
(2.) On 8th March 1983, the respondents hereinabove have filed application No. 402404 for registering the trade mark 'WONTEX' in Class 7 in respect of over-lock, bag closer, embroidery machines and spares thereof (except needles). The mark was proposed to be used on the date of the application. The said trade mark was advertised in the Trade Mark Journal dated 1.1C. 1986. On 31st December 1986, the appellants hereinabove filed a notice of opposition to the registration of the above-mentioned trade mark of the respondents on the grounds that the appellants are he registered proprietors of the trade mark 'WINTEX' and have been using it since the year 1980. They have been using the trade mark in respect of sewing machines and spare parts thereon since 1.12.1980. The above trade mark has been registered as No. 370359 in Class in respect of sewing machines and the registration is valid and subsisting. They have submitted that the rival trade marks are deceptively similar and that the respondents' trade mark is a colourable imitation of the appellants' trade mark. They have also submitted that the goods of the appellants and that of the respondents are goods of the same description and hence there is likelihood of confusion and deception between the two marks. They have concluded that the registration of the respondents' mark would be contrary to the provision of Sections 9, 11(a) and 12(1) of the Trade and Merchandise Marks Act, 1958.
(3.) THE respondents filed their counter-statement denying all the material averments in the notice of the opposition and further submitted that the respondents' mark and the appellants' mark are quite different both visually and phonetically. THEy submitted that the purchasers of embroidery machines, over lock machines and bag closer machines cannot be mislead as the appellants' goods relate to sewing machines. THEy further submitted that they had bona fidely adopted the trade mark 'WONTEX' and concluded that the notice of opposition should be dismissed. THEy also relied that the respondents are eligible for registration under Section 12(3) of the Act.;