K.N.BASHA,CHAIRMAN - (1.) THIS appeal is preferred by the appellant challenging the order dated 24/02/2010 passed by the Deputy Registrar of Trade Marks, Chennai allowing the opposition filed by the respondent herein in Opposition No. MAS -600028 in Application No. 690805 in class 05 refusing the registration.
(2.) MR . Arun C. Mohan, learned counsel appearing for the appellant would submit that though the appellant has raised several grounds, they are confining only on the ground of non consideration of the claim and contention of the appellant on the ground of honest and bonafide concurrent user. The learned counsel would submit that the Deputy Registrar has not considered the explanation given by the appellant for honest and concurrent use and in view of the same, the impugned order is liable to be set aside and the matter may be remand back for fresh consideration.
(3.) EARLIER in this case, though the 1st respondent was already served notice, neither the party nor any of their representative counsel appeared before the Board and accordingly the 1st respondent was set ex parte as per the order of the Board dated 12/11/2013. The undisputed fact remains that the respondent was using their trade mark "PEACIN"right from the year 1977 -78 and as far as the appellant is concerned, they are using their trade mark "PACIN"only from 01/04/1992 onwards. The only grievance of the appellant is that the Deputy Registrar has not considered the explanation given by them in respectof honest and concurrent user of their trade mark. The learned counsel for the appellant took enormous pain to contend that in the impugned order, there is no specific finding about the claim of the appellant for honest and concurrent use. We are unable to countenance such contention for the simple reason that the perusal of the impugned order reveals that the Deputy Registrar has discussed the said point of honest and concurrent user at the inner page 5 of the impugned order and ultimately rendered a finding on that aspect at the inner page 13 of the impugned order. It was held by the Deputy Register as under: - "However, they have failed to establish how they hit upon the mark and in the absence of an appropriate explanation, the adoption of the identical trade mark by the applicants cannot be considered honest and bonafide. They cannot be termed as proprietors of the mark, although they may have used the mark since the year 1992, which is subsequent to the use by the opponents and as such, will not help the applicants." ;