Raghbir Singh, Vice Chairman - (1.) CM(M) 426/96 filed in the High Court of Delhi has been transferred to this Board in terms of section 100 of the Trade Marks Act, 1999 and numbered as TA/128/2003.
(2.) S/Shri Rajiv Gupta, Anil Gupta and Smt. Shashi Gupta trading as M/s JVC Auto Centre applied for registration of trade mark words 'JVC' per se under application No.447435 B in respect of "Battery Chargers, electric invertors, electric voltage stabilizer and safety helmets for motor cyclist included in class-9 on 27.12.1985. The appellants claimed the user of the mark since 1.12.1982. The trade mark was advertised in the Trade Marks Journal No.1000 dated 1.2.1991 at page 1278. M/s Victor Company of Japan gave notice of their intention to oppose the registration of the trade mark on 31.5.1991 on the grounds of section 11(a), 12(1) and 18(1) of the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as the Act). After filing of pleadings and evidence from both the sides, the matter was set down for hearing by Shri M.C.Gupta, Assistant Registrar of Trade Marks on 16.11.1994. Shri M.C.Gupta vide his order dated 5.12.1994 disallowed the request from the appellant on form TM-16 dated 8.11.1994 and decided that the appellants were not entitled to registration of the mark applied for. Thereupon the appellant applied for review of the aforesaid decision of the Assistant Registrar on form TM-57 dated 13.1.1995. Shri Om Prakash, Deputy Registrar of Trade Marks heard the review on 6.6.1995 and vide his order dated 12.6.1995 set aside the order dated 5.12.1994. The first respondent being aggrieved by the aforesaid order dated 12.6.1995 of the Deputy Registrar appealed to the High Court of Delhi in appeal CM(M) 301/1995. The High Court of Delhi vide order dated 18.7.1995 ordered that the application for registration of trade mark JVC bearing No.447435 and opposition No.DEL-7236 be heard by a Deputy Registrar other than Shri Om Prakash. Accordingly, the matter was heard by Shri U.S.Sharma, Assistant Registrar of Trade Marks in Delhi. The appellant in the instant appeal has challenged the proprietory of hearing the matter by an Assistant Registrar in place of the specific order of the High Court of Delhi that the matter be heard by a Deputy Registrar. We shall deal with this aspect of the matter later on.
(3.) THE Assistant Registrar Shri U.S. Sharma heard the matter on 30.8.1995. Learned Assistant Registrar identified sections 11 (a), 12(1), 12(3) and 18(1) of the Act as principal areas for consideration in the matter. In matter of his examination under section 12(1) of the Act, he came to the conclusion that there is complete identity of the impugned mark to the registered trade mark Nos.339772 and 436950 B of the first respondent. However, he found that the goods are of different description and are also not normally sold on the same counters. THE goods of the appellant are mainly inverters used for generating the A.C. current and battery chargers etc., and the goods of the first respondent are mainly audio and video equipments. In view of that he found that in so far as the description of goods are concerned, that is distinct and thus he found that the prohibition contained in section 12(1) of the Act does not apply.;