S. Jagadeesan, Chairman - (1.) THE appellant has preferred this appeal against the order of the Deputy Registrar of Trade Marks, New Delhi dated 7th July, 1992.
(2.) The appellant herein M/s. Sandoz Ltd. filed application No. 408773 dated 1st August, 1983 for registering their trade mark 'DERMAGEN' proposed to be used in respect of chemical products for use in the leather industry including in class 1 of the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as the Act). The said application was advertised in the Trade Marks Journal No. 917 dated 16th August, 1987. The first respondent herein M/s. Hico Products Ltd. filed their opposition on the following grounds:- i) The first respondent have been using for their products trade marks such as 'Dermasoft', 'Dermasolve', 'Dermapol', 'Dermoxyd', 'Dermacide', 'Dermaquat' and 'Silcoderm' since 1980. ii) First respondent's trade mark 'Dermasoft' is registered under No. 368594 from 15th November, 1980 in respect of chemical products used in leather industry included in class 1 of the said Act, The other trade marks are pending in the Trade Marks Registry. iii) The impugned trade mark applied for by the appellant is in respect of same goods, iv) The impugned mark applied for is deceptively similar to that of the first respondent and the appellants are not the proprietors of the mark applied for. v) The registration of the impugned mark would be contrary to Sections 11(a), 11(e), 12(1) and 18(1) of the Act. The appellant filed their counter statement refuting all the material averments contained in the notice of opposition stating that the appellant bona fidely adopted the mark applied for and that the prefix "DERMA / DERM" are common to the trade and that the suffix "GEN" is distinctive of the appellant's goods. They claimed to be the inventors and bona fide adopters as well as proprietors of the impugned trade mark 'DERMAGEN'. They also stated that the impugned trade mark is neither visually nor phonetically similar to the trade mark of the first respondent and as such there is no question of causing any confusion or deception or passing-off. They also denied the statement that registration of the impugned trade mark would contravene the provisions of Sections 11(a), 11(e), 12(1) and 18(1) of the Act. Both the parties filed their evidence and after hearing the respective counsel on either side, the Deputy Registrar under the impugned order allowed Opposition No. DEL 4859 of the first respondent herein and refused registration of the appellant's application No. 408773 in class 1. Aggrieved by the same the appellant preferred an appeal CM(M) No. 136 of 1995 on the file of High Court of Delhi and the same stood transferred to this Appellate Board by virtue of Section 100 of Trade Marks Act, 1999.
(3.) WE have heard the arguments of Shri Sanjay Jain on behalf of the appellant. On behalf of the first respondent Shri M.K. Miglani filed appearance on 16th July, 2004. He represented before us that the letter sent to his client returned unserved with an endorsement that the first respondent is not in the given address and consequently he is unable to contact his client and he may be discharged from the proceedings and he is no longer appearing for the first respondent. The notice sent to the first respondent through the Registry of the Appellate Board also returned unserved with an endorsement 'left'. Hence there is no representation on behalf of the first respondent.;