S. Jagadeesan, J. (Chairman) - (1.) THE appellant has preferred this appeal against the order dated 22.11.1995 of the second respondent herein, rejecting the application of the appellant for registration.
(2.) The appellant filed the application No. 442125 on 22.8.1995 for registering the trademark 'POPULAR ASHOKA' in respect of text books (educational) for sale in the State of Rajasthan. The said application was advertised before acceptance in the Trade Mark Journal No. 1050 dated 1.3.1993 at page 1205, claiming the user since 1967. On 19.4.1993, the first respondent herein gave notice of their intention to oppose the registration of the impugned trademark on the ground that it violates Section 9, 11(a), 11(e), 12(1) and 18 of the Trade and Merchandise Marks Act, 1958, hereinafter referred to as the Act. The appellant filed their counter statement as well as the grounds in rebuttal. The first respondent filed evidence in support of their opposition by way of an affidavit in the name of Shri Ashok Kumar Jain. The evidence consists of the advertisement of their trademark, the bills of sale for the period 1968 to 1992 under exhibit B-1 to B-97, then bills of artists and printers for the period 1968 to 1970 under exhibit BB-1 to BB-7. Some of the advertisements under exhibit C-1 to C-19 along with affidavit and letters of teachers, book-sellers are filed as exhibit D-1 to D-48. The first respondent also filed some of the sales invoices, which are at exhibit S-1 to S-35 and affidavits from various persons under exhibit SA-1 to SA-14 along with affidavits and sales invoices of some other book-sellers under exhibit SO-A to SO-5. The appellant filed evidence in support of their application by way of an affidavit in the name of Shri Ashok Prakash Gattani. They also filed the sales invoices and other supporting documents under exhibit 1 to 144. After compliance of the formalities, the Assistant Registrar heard the matter and ultimately rejected the application of the appellant and allowed the opposition No. AMD 574 of the first respondent under the impugned order. Aggrieved by the same, the appellant preferred an appeal on the file of the High Court of Gujarat at Ahmedabad in Appeal No. 8 of 1986, which stood transferred to this Appellate Board in compliance of Section 100 of the Trade Marks Act, 1999.
(3.) WE heard the appeal during our sitting at Ahmedabad on 20.12.2004. Shri R.R. Shah, the learned counsel appeared on behalf of the appellant and Shri Manav A. Mehta, the learned counsel appeared on behalf of the first respondent. The learned counsel for the appellant contented that the appellant is seeking the registration of the mark 'POPULAR ASHOKA' confining the same in respect of the text books (educational), whereas the first respondent's mark 'ASHOKA' is registered in respect of books in general. As such, the registration of the impugned mark cannot create any confusion or deception in the trade and hence Section 11(a) of the Act is not attracted. Both the names 'POPULAR ASHOKA' of the appellant and 'ASHOKA' of the first respondent are not identical and are clearly distinguishable by the consumer. Even apart from that, most of the books of the first respondent are being identified with the title and not with the printer's trademark, whereas the text books invariably are being identified with the printers. Hence there is no possibility of any confusion or deception. The findings of the Assistant Registrar of Trade Marks in respect of Section 12(1) is also incorrect as the Assistant Registrar did not consider the difference of goods of the appellant especially when the appellant has restricted their mark for the text books (educational) alone, whereas the first respondent's mark is a general one in respect of all the books. He also contented that the appellant had let in evidence with regard to the user by way of advertisements, affidavits, letters and sale invoices and proved the earlier use. The Assistant Registrar, without properly considering the evidence, has rejected the same on the ground that the applicant did not produce a book which was published or printed by the appellant. The production of the book is unnecessary in view of the other evidences available on record. The learned counsel for the appellant also pleaded that the appellant is entitled for the benefit of Section 12(3) of the Act. On the contrary, the learned counsel for the first respondent contented that the first respondent's mark is registered under No. 336730 very much earlier to the application of the appellant. Further, the nature of goods of both the appellant as well as the first respondent are the same and as such, the identical mark in the trade would cause confusion and deception. The Assistant Registrar has discussed all the material evidences available on record and found on facts that the impugned mark is not registrable as it offends Section 11(a) and 12(1) of the Act. The finding being a question of fact, no interference is called for and the appeal is devoid of any merits.;