S. Jagadeesan, Chairman - (1.) THE applicant has filed the petition under Section 56 of the Trade and Merchandise Marks Act, 1958 in O.P. No. 712/1995 on the file of the High Court of Madras. THE said O.P. was transferred to this Appellate Board under the provisions of Section 100 of the Trade Marks Act, 1999.
(2.) The applicant has filed this petition seeking a direction directing the 7th respondent to cancel the Trade Mark 144 of respondents 1 to 6 covered under Registration of Trade Mark No. 497120 in Class 24 dated 2.9.1988. The case of the applicant is that they are carrying on the business in handloom, towels and lungies ever since 1975 with the label containing 744. By virtue of long, extensive and continuous use, the said Trade Mark label 744 has become distinctive of and is exclusively identified with the goods sold by the applicant. The said Trade Mark label 744 represents the 7th house in the Horoscope of the applicant's husband Shri Premraj Chordia in which the four planets viz., Sun, Moon, Mercury and Jupiter with 6th Rasi Virgo are situated. The artistic work of 744 label was thus extracted from the Horoscope of the applicant's husband and was designed by the Astrologer. While so, the respondents No. 2 to 6 who are the partners of the first respondent firm applied for their artistic label 144 on 2.9.1988. The same was advertised in the Trade Mark Journal on 16.6.1993 and thereafter it was registered as there was no opposition. The respondents No. 2 to 6 at the time of applying for registration of the Trade Mark 144, they claimed use of the same since the year 1974. But, in the other proceedings, such as C.C. No. 5105/93 on the file of the III Metropolitan Magistrate, George Town, Chennai, and Criminal Miscellaneous Petition O.P. No. 7490/1994, before the High Court of Madras as well as in C.S. No. 1017/1995 on the file of the High Court of Madras, they claimed the use of the said Trade Mark 144 from the year 1982. This conflicting statement of respondents 2 to 6 in respect of the use of the disputed trade Mark 144 clearly proves that the respondents have made false representation and obtained the Certificate of Registration by fraud, incorrect statements and also by misrepresentation, In view of the false representation, they ate not eligible and entitled to claim the proprietorship of the disputed Trade Mark. The respondents 1 to 6 have also filed a suit C.S. No. 1017/1995 on the file of the High Court of Madras for the action of infringement against the applicant. Since the registration of their Trade Mark was obtained by false and misrepresentation, the respondents cannot maintain any legal action against the applicant on the basis of the said Trade Mark. Now that it is clear that the respondents 2 to 6 have obtained the registration of their Trade Mark 144 on misrepresentation, the same is liable to be cancelled and hence the petition has been filed for the said relief of cancellation of the Trade Mark 144 of the respondents 2 to 6.
(3.) A detailed counter affidavit was filed by the respondents wherein it is stated that the first respondent firm has been continuously and uninterruptedly using the Trade Mark 144 brand label since the year 1974. The first respondent is a recognized Export House certified by the Government of India. They were dealing with handloom goods under different Trade Mark and one such being the disputed brand label 144. In the counter statement, the respondents 2 to 6 have also given a statement of turnovers from the year 1987-88 to 1994-95. The first respondent has also registered the Trade Mark brand label 144 under the Copyright Act under No. A-52012/92. It is also stated that the filing of the petition by the applicant is only as a counter blast for the suit filed by the respondents for the infringement action. Through several other averments had been stated in the counter affidavit, in our view they are not necessary for the disposal of this application.;