S. Jagadeesan, J. (Chairman) - (1.) THE appellants have filed this appeal against the order of the Assistant Registrar of Trade Marks, New Delhi, dated 9.12.1996, disallowing the opposition Nos. DEL 7841 and 7842 .
(2.) The first respondent Smt. Kanta Arora, trading as M/s. Kumar Enterprises, filed an application No. 483753 for registration of the trade mark 'PHILIPS' in respect of Pressure Cooker included in class 21 of the Fourth Schedule of the Rules framed under the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as the Act). The said application was advertised before acceptance in the Trade Marks Journal No.1030, dated 1.5.1992 at page 164. On 28.2.1992, the appellants herein gave separate notices of their intention to oppose the registration of the impugned trade mark advertised on the grounds of its violative of Sections 9, 11, 12(1) and 18(1) of the Act raising the plea that they are the registered proprietors of the trade mark Philips under No.145532 in class 21 in addition to which they have obtained more than 30 registration for their trade mark 'PHILIPS' in different classes. The first respondent filed the counter statement refuting the objections raised by the appellants and also filed the rebuttal evidence. Both the parties filed their respective evidences as prescribed under the Rules and after the completion of formalities, the application was taken up for hearing. After hearing the counsel on both sides, under the impugned order, the Assistant Registrar disallowed the opposition of the appellants and accepted the application of the first respondent. The Assistant Registrar found that the application of the first respondent is violative of Section 12(1) of the Act. So far as the objection regarding Section 11(a) is concerned, after elaborate discussion and after referring to a number of judgments, the Assistant Registrar found that the goods of the first respondent are not the same or of the same description since the appellants are not manufacturing or dealing with non electrical pressure cookers and as such, there cannot be any confusion and consequently held that Section 11(a) is not attracted. The Assistant Registrar further found that the first respondent is using the mark and the adoption of the trade mark is also bonafide and consequently she is entitled for the benefit of Section 12(3) of the Act. Even with regard to the objection under Section 18(1) is concerned, the Assistant Registrar over-ruled the same on the ground that the first respondent is using the impugned mark prior to the date of application and as such, on the date of application, she is the proprietor of the impugned mark by use. Ultimately the oppositions of the appellants were disallowed and the application of the first respondent was accepted. Aggrieved by this order of the Assistant Registrar, the appellants have filed an appeal on the file of the Delhi High Court, New Delhi, in CM(M) No.140/97, which stood transferred to this Appellate Board by virtue of Section 100 of the Trade Marks Act, 1999, and numbered as TA/321/2004/TM/DEL.
(3.) WE have heard the appeal during our circuit sitting at Delhi on 15.2.2005. WE have heard the arguments of Shri N. Mahabir assisted by Ms. Sheetal Vohra for Shri Manmohan Singh for the appellants. The notice sent to the first respondent was returned with an endorsement "left without leaving the address". The notice sent to the counsel for the first respondent was served. However, there was no representation on behalf of the first respondent.;