S. Jagadeesan, Chairman - (1.) THE appellant has filed this appeal against the order of the Deputy Registrar of Trade Marks, dated 12.6.1995, disallowing the opposition of the appellant.
(2.) The respondent herein filed an application No. 457636 on 28.7.1986 for registration of the trade mark "MOET'S" in respect of meat, fish, poultry and game and meat extracts included in class 29 of the Fourth Schedule of the Rules framed under the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as the Act). The said mark was advertised in the Trade Marks Journal No. 965 dated 16.8.1989 at page 637. The appellant herein M/s. Champagne Moet and Chandon, filed their notice of opposition on 20.10.1989 opposing the registration of the impugned trade mark on the ground that the appellants are the registered proprietor in India of the trade mark 'MOET' label under No. 396612 as of 15.10.1982 in class 33 in respect of wines and especially champagne wine. They are also the registered proprietors of the trade mark MOET and CHANDON under No. 439835 B as of 5.7.1985 in class 33 in respect of wines, sparkling wines, champagne, wines, spirits, liquors. They also stated that they are using the said trade mark for more than 54 years and the same has attained goodwill and reputation in the market. The impugned mark is not registrable under Sections 9(1), 11(a), 11(e) and 18(1) of the Act. The respondent filed the counter statement on 22.11.1990 denying the material averments contained in the notice of opposition by stating that the trade mark MOET'S was first coined and adopted by the respondent in 1967 from the Indian/Hindi word 'MOHIT' which is the name of one of the partners. In addition, MOET'S is also a part and parcel of the trading style of the respondent's firm and they are using the mark continuously since 1967. The appellant filed their evidence on 9.7.1991 by way of an affidavit dated 3.5.1991 in the name of one Mr. Yves. Bernard alongwith the Photostat copies of invoices, advertisement cuttings and certificate of registration. The respondent also filed their evidence on 31.12.1991 by way of an affidavit dated 23.12.1991 in the name of Mr. Yugal Kishore Aggarwal with a few copies of invoices. The respondent further filed an affidavit of Shri Ravi Meshawari, Brijesh Sood and Pawan Chaudhary, the agents or dealers by filing an Interlocutory Application which was allowed and the evidence was taken on file. After completion of these formalities, the matter was listed for hearing on 1.6.1995, on which date, there was no representation for the appellant. The Deputy Registrar heard the counsel for the respondent Shri Mohan Vidhani and passed the impugned order disallowing the opposition No. DEL 6451 of the appellant and directed to proceed for registration of the application of the respondent finding that the respondent proved the substantial use of their mark and thereby over-ruled the objection of the appellant existing under Sections 11(a) and 11(e) of the Act. On the same reasoning, the Deputy Registrar also over-ruled the objection under Sections 9 and 18(1) of the said Act. Further, the Deputy Registrar found that the impugned mark is registrable within Section 12(3) of the said Act. He also found that the goods of the appellant and the respondent are not the same or of the same description. Aggrieved by the said order, the appellant filed an appeal in No. CM(M) 487/1995 on the file of the High Court of Delhi which stood transferred to this Appellate Board by virtue of Section 100 of the Trade Marks Act, 1999 and numbered as TA/121/2003/TM/DEL. We have heard Shri N. Mahabir and Ms. Sheetal Vohra the counsel for the appellant and Shri Mohan Vidhani, counsel for the respondent.
(3.) THE learned counsel for the appellant contended that the appellants are dealing in liquor and for their trade they have obtained the registration of the mark MOET label as early as 1982 in class 33. THE respondent applied for registration of the same identical mark for meat, fish, poultry, games and meat extract falling under class 29. When the matter was listed for arguments, on behalf of the appellant, a petition was filed on 31.5.1995 in TM 56 seeking an adjournment of one month on the ground that the counsel was not in station. THE Deputy Registrar refused the adjournment and allowed the counsel for the respondent to argue the matter. Hence, the appellant was not given due opportunity to be represented through its counsel. On merits, the learned counsel contended that the appellant has the registration of the trade mark MOET label in respect of wines and especially champagne wine, which statement is not controverted by the respondent. THE plea of the respondent is that they have coined the word MOET'S in 1967 and the same was adopted from the word MOHIT which is the name of one of their partners. THE said Partner Shri Mohit Bindra, while he was a toddler, used to call himself as MOET and thereby the adoption of the mark was made. This plea of the respondent cannot be accepted at all. Even assuming that the word has been coined since 1967, the application for registration was made by the respondent only on 28.7.1986, by which time the appellant's mark MOET has obtained a reputation and goodwill in India in respect of liquor. When once the appellant's mark had got a reputation and goodwill, then the registration of a similar mark even in respect of other goods may cause confusion and deception in the trade as if such goods are being from the appellant's channel, when the appellant has no connection with those goods. Further, the respondent is providing accommodation for cocktail parties by supplying food and beverages, they are fully aware about the appellant's trade mark and as such, their adoption of the impugned mark is not bona fide. Consequently, they are not entitled for registration even under Section 12(3) of the said Act, THE learned counsel has relied upon the following judgments in support of his contentions: (1) N.R. Dongre and Ors. v. Whirlpool Corporation and Ors., AIR 1995 DEL 300; (2) Alfred Dunhill Limited v. Kartar Singh Makkar and Ors., 1999 PTC 294; (3), Reliance Industries Limited v. Anand Traders and Ors., 1999 PTC 414; (4) Sarabai International Ltd. and Anr. v. Sara Exports, 1985 PTC 105; (5) V.S. Dhanasekar and Ors. v. K. Lokaiyan and Ors., 2004 PTC 455; (6) Beecham Group Plc, v. S.R.K. Pharmaceuticals, 2004 PTC 391; (7) Marconi Electronics v. Marconi Company Ltd., 2004 PTC 433.;