Raghbir Singh, Vice Chairman - (1.) THE respondent/applicant filed an application bearing No. 447114 to register trade mark label containing the device of two bent stripes and the word 'asha' as its essential feature in respect of hosieries in class 25. THE trade mark was claimed to have been used since September 1979 on the date of application. THE application was advertised before acceptance under proviso to Section 20(1) of the Trade and Merchandise Marks Act, 1958 in the Trade Mark Journal No. 1066 dated 1st November, 1993 at page 818. THE notice of opposition was filed on 13th December, 1993 by M/s. Aysha Hosiery Factor Pvt. Ltd., Cannanore, Kerala.
(2.) The grounds of opposition taken were as under:- (i) That the opponents are the registered proprietors of the trade mark 'AYSHA' in respect of hosiery, inner wears and outer wears under trade mark No. 385576 in class 25; (ii) that the opponents have continuously and extensively used the said trade mark since the year 1936 in respect of goods mentioned above and due to such continuous and extensive use, it has become well known and has attained a very high reputation; (iii) by reason of long and continuous use, advertisement, sales promotion work and also the superior quality of goods sold under the trade mark 'AYSHA' great reputation and goodwill have accrued to their said trade mark; (iv) having regard to the established user and reputation associated with the opponent's trade mark, the use of the applicant's mark will result in deception and confusion and, therefore, its registration is prohibited by the provisions of Section 11(a), 11(b) and 11(e) of the Act; (v) that the trade mark sought to be registered by the applicant is identical with and/or deceptively similar to the opponent's trade mark mentioned above and the goods in respect of which the applicant is seeking registration are the same and of the same description compared with the goods in respect of which the opponents have been marketing 'AYSHA' for the last several years and, therefore, its registration is prohibited under Section 12(1) of the Act; (vi) that the impugned mark is neither adapted to distinguish nor capable of distinguishing the goods of the applicant and the same fails to qualify for registration under Section 9 of the Act; (vii) that the applicant cannot claim to be proprietor of the trade mark under Section 18(1) of the Act; and (viii) the registration of the impugned mark is prohibited under Sections 9, 11(a), 11(b), 11(e), 12(1) and 18(1) of the Trade and Merchandise Marks Act, 1958. The allegations of the appellant/opponent were denied in the counter statement filed by the respondent/applicant on 22nd August, 1994. The respondent/applicant claimed that they had been using the mark since 1978 without causing any obstruction or confusion in the trade and there was no similarity between the trade marks of the respondent/applicant and the appellant/opponent. Both the parties filed their evidences through affidavits alongwith the respective exhibits referred to in the evidence. The learned Deputy Registrar heard the matter on 30th June, 2000 and passed his orders on 20th June, 2002 allowing the registration of the mark to proceed.
(3.) THE appellant/opponent aggrieved by the decision of the Deputy Registrar filed an appeal under Section 109(3) of the Trade and Merchandise Marks Act, 1958 in the High Court of Judicature at Madras which has been transferred to this Appellate Board in terms of Section 100 of the Trade Marks Act, 1999 for disposal.;