S. Jagadeesan, Chairman - (1.) THE appeal is against the order of the Deputy Registrar of Trade Marks, Chennai dated 13.3.2002 allowing the opposition No. MAS/2666 filed by the respondent and rejecting the Application No. 397696B in class 30 filed by the appellant for registration of the trade mark 'APPU BRAND'.
(2.) The Appellant herein is a company incorporated under the Companies Act, 1956. They filed the application No. 397696 to register a trade mark label containing the device of an 'elephant' and the word 'APPU' in respect of their product Maida, Sooji and Atia. The goods fall under class 30 of the Fourth Schedule of the Trade and Merchandise Marks Act, 1958. The said Trade Mark is stated to be proposed to be used on the date of the application i.e., 18.11.92. Though some preliminary objections were raised to the said application by the Registrar of Trade Marks, after hearing the counsel for the appellant, the application for registration was directed to be converted into one for registration in part B of the Register and thereafter the same was ordered to be advertised before acceptance for registration. The application of the appellant was eventually advertised under the proviso to Section 21 of the said Act in the Trade Mark Journal No. 1023 dated 16.1.92 at page 1313. The respondent herein filed a notice of opposition on 16.3.92 to the aforesaid application of the appellant for registration of the trade mark 'APPU BRAND' raising the following objections. (i) The respondent is the proprietor of the trade mark consisting of a device of 'elephant' and the words 'HATHI CHAAP' in respect of flour, gram flour, besan, rise, atta and gram dall and has been using the said trade mark since 1954. (ii) The opponent is the proprietor of the said trade mark in respect of gram flour and gram dall (broken) under Trade Marks Nos. 292411 and 366084 falling under class 30. (iii) By the reason of long, extensive and continuous use of their mark, the opponent had acquired a great reputation and goodwill. (iv) The registration of the mark applied for will be contrary to the provisions of Section 11 (a) and 11 (e) as well as Section 9 of the Act.
(3.) THE applicants filed their counter statement on 25.9.92 denying the averments of the opponent and contended that the applicant's trade mark sought to he registered is not similar to that of the respondent's 'HATHI CHAAP' trade mark and the two marks are totally different and distinct one. Both the parties have produced evidence with regard to the use of the trade mark. Both the applicant and opponent notified the Registrar in Form TM 7 in terms of Rule 59 of the Trade and Merchandise Marks Rules, 1959. Both the parties are represented by the counsel before the Registrar. After hearing both the counsel, the Registrar rejected the application filed by the appellant for registration of the trade mark 'APPU BRAND' in application No. 397696B under the impugned order finding that the appellant's trade mark is deceptively similar to the opponent's registered trade mark and as such Section 12(1) constitutes a bar to the registration of the appellant's trade mark. THE Registrar further found that since the products of the appellant as well as the respondent are of same nature and if the appellant is allowed to use the trade mark sought to be registered, it is likely to cause deception and confusion in the trade and as such Section 11 (a) as well as Section 11(e) of the said Act are attracted. So far as Section 12(3) is concerned, the Registrar held that the registration sought for by the appellant is not one under Section 12(3) and as such he is not entitled for the benefit of the same. So far as the plea of the respondent that the appellant copied the trade mark of the respondent and as such Section 18 is attracted is concerned, the Registrar held that the applicant had not copied the respondent's mark and consequently held that Section 18(1) of the said Act is not attracted. Ultimately, the application of the appellant was rejected under Section 18(4) of the Act. Aggrieved by the same, the appellant filed an appeal on the file of the High Court of Judicature at Madras in TMA 3/2002. After the constitution of the Appellate Board under the Trade Marks Act, 1999 the appeal has been transferred to this Board and we heard both the learned counsel. THE only argument advanced by the learned counsel for the appellant is that the appellant's trade mark 'APPU BRAND' is totally a different one compared to the respondent's trade mark for the 'HATHI CHAAP' with the device of an elephant. In view of this limited argument, it is unnecessary for us to go into the other question discussed by the Registrar. It is for us to compare both the trade marks of the appellant as well as the respondent and to find out as to whether they are identical and whether it would cause any deception and confusion in the trade.;