T.R. Subramanian, Technical Member - (1.) THIS is an appeal filed by the appellants against the decision of the Deputy Registrar of Trade Marks in Opposition. No. DEL 4768 filed by the respondents in respect of trade mark application No. 416782 filed for registration of trade mark in Class 11.
(2.) On 27th January 1984, the appellants hereinabove had filed an application No. 416782 in Class 11 for registering the trade mark 'NORTH STAR' (word per se) in respect of exhaust fans claiming user from January 1981. The application was advertised in the Trade marks Journal dated 16.4.1987. On 15th June 1987, the respondents hereinabove filed a notice of opposition opposing the registration of the appellants' trade mark on the grounds that the respondents are the registered proprietors of the famous trade mark 'BATA' under No. 6574 in respect of variety of goods including foot wear. They claimed that they are also the registered proprietors of the trade mark 'NORTH STAR' under No. 309788 dated 7.11.1995 in respect of foot wear included in class 25. They had also made application for registering the trade mark 'NORTH STAR' in different classes like Class 25, 18, 16, 24, 26 & 28 and that the respondents' business under the trade mark 'NORTH STAR' is so extensive and the reputation earned is so high that any goods sold or offered for sale identically with similar trade mark will inevitably create confusion and deception among the public. They submitted that the registration of the appellants' mark would be contrary to the provisions of Sections 9, 11(a), 11(e), 12(1) and 18(1) of the Trade and Merchandise Marks Act, 1958.
(3.) THE appellants filed their counter-statement denying all the material averments contained in the notice of opposition and submitted that they are the lawful proprietors of the trade mark consisting of the word 'NORTH STAR' in respect of exhaust fans and water pumps. THEy submitted that they have adopted the mark from January 1981 and since then they have been continuously and extensively using the trade mark and the mark has become distinctive of the appellants goods. THEy further submitted that the trade mark 'BATA' has no relevancy to the present proceedings. THEy also submitted that the respondents goods are footwear whereas the appellants' goods are exhaust fans and water pumps. THE respondents filed their evidence, which was followed by the evidence of the appellants. THE respondents thereafter, filed their evidence in reply. THE matter came up for hearing before the Deputy Registrar on 15th October 1990. THE Deputy Registrar by his order dated 26th March 1991 allowed the opposition and refused the registration of the appellant's application.;