S. Jagadeesan, Chairman - (1.) THE appellant has filed this appeal against the Order of the Deputy Registrar of Trade Marks, dated 1.9.1997.
(2.) The first respondent herein, M/s. Capital Automobiles filed application No. 460711 on 25.9.1986 for registering the trade mark 'MICRO' in respect of high pressure pipes for single cylinder and multi cylinder Diesel Engines being parts for Tractors included in class 12 of the Fourth Schedule of Trade and Merchandise Marks Act, 1958 (hereinafter referred to as the Act). The said mark was advertised in the Trade Marks Journal No. 1069 dated 16.12.1993 at page 1045. The appellant herein, M/s. Motor Industries Company Limited, lodged their notice of opposition on 24.1.1994 opposing the registration of the impugned mark on the ground that they are the manufacturers of ignition systems and devices, parts and fittings for motor vehicles, spark plugs, machine tools, scientific apparatus and instruments, gaskets and allied goods with their trade mark 'MICO' in a number of classes and they are the inventors, adopters and sole proprietors of the word 'MICO'. It was invented by them as early as 1950 and their mark has attained reputation and goodwill and as such, the registration of the impugned mark is contrary to the provisions of Sections 9(1), 11(a) 11(e), 12(1) and 18(1) of the said Act. The first respondent filed the counter-statement refuting the averments made by the appellant in their opposition and further added that they are engaged in the business of manufacturing and marketing high pressure pipes suitable for single cylinder and multi cylinder Diesel Engines for Tractors since the year 1986 under the trade mark 'MICRO' and the said mark is a well known dictionary word capable of inherently distinguishing their goods from those of the others. Further, the said mark is not phonetically, visually or structurally similar to that of the appellant's mark. Therefore, the registration of the mark is not contrary to any of the provisions mentioned by the appellant. Both the parties filed their evidence and the matter was heard by the Deputy Registrar. Under the impugned order, the Deputy Registrar disallowed the opposition No. DEL-8390 of the appellant and accepted the application of the first respondent for registration finding that the appellant has failed to adduce substantial evidence to prove the user and also failed to establish that they attained a reputation and goodwill. The bills produced by the appellant are only xerox copies certified by the Notary and without the signature of the issuing authority. Hence, the same cannot be relied upon for the use of the trade mark 'MICO'. Apart from that, the mark of the first respondent 'MICRO' does not appear to be deceptively similar to the appellant's trade mark 'MICO'. Consequently, the objection of the appellant under Section 11(a) was over-ruled and the objection under Section 11(e) was also over-ruled on the same ground. The objection under Section 12(1) was also over-ruled on the ground that the marks are different. The objection under Section 9 was over-ruled on the ground that the impugned mark qualifies the requisites for registration under Section 9 of the Act. The objection under Section 18(1) was over-ruled on the ground that the first respondent is the proprietor of the impugned mark. Aggrieved by the said order, the appellant filed the appeal CM (M) No. 565/1997 on the file of the High Court of Delhi at New Delhi and the same was transferred to this Board by virtue of Section 100 of the Trade Marks Act, 1999 and numbered as TA/137/2003/TM/DEL.
(3.) DURING our sitting at Delhi on 1.11.2004, the matter was heard by us. Shri N. Mahabir and Ms. Sheetal Vohra, the learned counsel appeared for the appellant and none appeared for the first respondent.;