S.USHA,VICE -CHAIRMAN - (1.) THE original appeal arises out of the order dated 26/07/2006 allowing the opposition No. CAL -60150 and refusing registration of the application No. 705891 in class 30 under the provisions of the Trade Marks Act, 1999 (hereinafter referred to as the Act).
(2.) THE appellant herein filed an application for registration of the label mark consisting of the words Dhunseri & Gold' under No. 705891 dated 16/05/1996 in respect of tea. The mark was proposed to be used on the date of application. The application was advertised before acceptance under section 20(1) vide Trade Marks Journal No. 1255 dated 16/09/2001 at page 2426.
(3.) THE respondents herein opposed the registration on the ground that the respondents had been using the trade mark consisting of the word Sona' since the year 1978 for the goods tea'. The trade mark consisting of the words Sona Tea' tea is registered under No. 407039 in class 30 as of 23/06/1983. On account of extensive use and popularity, the trade mark Sona had acquired immense popularity among the public. Under these circumstances, the impugned registration is likely to cause confusion and deception among the trade and public and hence prohibited under section 11 read with 12 of the Act. Disclaimer of the word Gold' cannot eliminate the deceptive similarity between the rival marks during the course of use of the impugned trade mark. The very adoption of the trade mark Gold' is to enjoy benefits / profits from the reputation and goodwill enjoyed by the respondents and therefore the appellants cannot claim proprietary rights under section 18 of the Act. The appellants herein filed the counter statement denying the various allegations and averments made in the notice of opposition. The appellants had stated in the counter statement that they are in the business of manufacturing and marketing tea since the year 1916 and that the word Dhunseri' is already registered. The word Sona' cannot be equated with the word Gold' and therefore no occasion of any deception or confusion.;