S.USHA,VICE -CHAIRMAN - (1.) BOTH the rectification applications are filed by the applicants and the respondents against each other for removal of the trade mark "Arshari" registered under Nos.1158180 and 1198835 in class 5 under the provisions of the Trade Marks Act 1999 (hereinafter referred to as the Act). ORA/193/2007/TM/MUM The applicant and their predecessors in business are engaged in the business of manufacturing/marketing Ayurvedic Medicinal and pharmaceutical preparations under the trade mark "Arshari" since the year 2002. The applicants applied for approval to FDA on 27/06/2002 and the same was approved on 03/02/2003. The applicant's first sale of their product bearing the trade mark "Arshari" was on 13/03/2003. The applicant has been using the trade mark "Arshari" continuously and extensively.
(2.) THE applicants are the registered proprietors of the trade mark "Arshari" under No.1198835 in class 5 as of 14/05/2003 and the said registration is valid and subsisting. By virtue of extensive and voluminous use, the mark has come to be exclusively associated with the applicants.
(3.) THE use of the impugned trade mark "Arshari" under No.1158180 is likely to cause confusion and deception as to the trade origin having regard to the wide and immense reputation and goodwill earned by the applicants. The public who are acquainted with the applicant's goods under the name "Arshari" are bound to associate the registered proprietors business with the applicants. The customers looking at the respondent's goods under the identical trade mark are bound to be put to the state of wonder as to whether these goods emanate from the applicants. The applicants being prior adopters and user of the trade mark "Arshari" and also that they have received a legal notice from the respondent, they are aggrieved person and therefore they have locus standi to file an application for rectification.;