S. Jagadeesan, J. (Chairman) - (1.) THE respondent filed an application for registration of their label mark consisting of the word POWERPACK and monogram of letter RE under class 9 in respect of goods insulated electric wires and cables, Television recording sets, switches, fuses, etc.
(2.) The petitioner/appellant filed their opposition stating that they are the renowned manufacturers and merchants of electric accumulators and electric batteries and parts thereof under their trade mark which is the device of shattered 'O' and the device shattered 'O' is part of other marks as CHLORIDE FREEDOM and CHLORIDE POWER SAFE, etc. In the opposition, the petitioner/appellant contended that the marks are same and the goods are same. However, under the impugned order, the Deputy Registrar of Trade marks took a different view and rejected the opposition of the petitioner and directed the registration of the impugned mark of the respondent. Aggrieved by the same, the petitioner has preferred this appeal seeking stay of operation of the impugned order of the Deputy Registrar pending disposal of the appeal. The petitioner referred to the impugned trade mark of the respondent POWER PACK in which there is a lightning stroke in the letter 'O'. He also pointed out to the petitioner's mark at page 28. The mark of the petitioner is a circle with lightning wave almost similar to the letter 'W'. The lightning wave encircled by the letter 'O' is within a square. When we have to consider the question of confusion, we have to see the name of such mark along with the colour scheme or other vital relevant particulars.
(3.) PRIMA facie, when the respondent's mark is POWER PACK and the petitioner's mark over which they claim the right is a letter 'O' with a lightning mark, the petitioner may use that letter as part of their different name. When the trade name of the first respondent is totally distinguishable from the name of the petitioner, we are of the view that prima facie no case has been made out by the petitioner for the grant of interim order. Hence, the M.P. 63/2004 is dismissed.;