S.USHA,VICE -CHAIRMAN - (1.) THE instant appeal arises out of the order dated 30/08/2005 passed by the Deputy Registrar of Trade Marks, dismissing the opposition No.KOL -166848 and allowing the application No.739760 in class 5 to proceed to registration under the provision of the Trade Marks Act 1999 (hereinafter referred to as the Act).
(2.) THE brief facts of the case are - - The respondent herein filed an application for registration of the trade mark "Hepatone" under No.739760 in class 5 on 17/12/1996. The mark was claimed to be used since 13/03/1956. The said application was advertised in the Trade Mark Journal No. Mega 3 dated 14/10/2003 at page 88. The appellant herein opposed the said registration on various grounds.
(3.) ON completion of the pleadings, the Deputy Registrar heard both the parties and passed the impugned order dismissing the opposition and allowing the application for registration. The Registrar held that the rival trade mark "Hepatone" and "Hepatoglobine" cannot be held to be deceptively similar. The prefix and suffix in the rival marks are different and dissimilar. The applicants ie. the respondents are using the trade mark "Hepatone" since the year 1956 and there has been no instance of confusion and deception and that they are entitled to claim protection under Section 12 of the Act. The impugned trade mark "Hepatone" consists of combination of two syllables Hepa + Tone whereas the appellant's trade mark "Hepatoglobine" consists of two syllables Hepato + Globine. There is no basis for the appellants objection as to proprietary right since the respondents have been using since the year 1956. There is no justifiable reason to exercise discretion adverse to the respondents and therefore registration was allowed.;