Raghbir Singh, Vice Chairman - (1.) APPEAL No. 9/98 filed in the High Court of Gujarat at Ahmedabad has been transferred to this Board in terms of section 100 of the Trade Marks Act, 1999 and numbered as TA/Rectt/274/2004/TM/AMD.
(2.) First respondent herein filed an application under sections 46 and 56 of the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as the Act) before the Registrar of Trade Marks at Ahmedabad for rectification of the Register in relation to trade mark No. 414061 registered in the name of second appellant. The grounds for rectification taken are that the registration was taken by presenting facts which were wrong and false; that the trademark had not been used at all in relation to the goods for which it was registered; that there was no bonafide intention on the part of the proprietor to use the mark in relation to the goods for which it was registered; that the period of more than five years and one month had lapsed since registration was taken and the mark had not been continuously used; that the registration of the mark was without sufficient cause and it was contrary to the provisions of law; that the entry of the registration of the trade mark was wrongly remaining on the Register. An alternative plea was taken that if it was held that the goods for which the first respondent is using the mark 'AZUCAR 80' viz., welding electrodes (electric) and welding apparatus (electric) are same or goods of same description as the goods for which second appellant holds registration, then, he was the proprietor of the mark 'AZUCAR 80' in respect of welding electrodes and welding apparatus (electric)and had been using that mark since 1987 regularly and thus the use of the mark by the appellant was likely to deceive and cause confusion and the registration of the mark was taken against the provisions of section 11 of the Act and that the registration of the mark comes under the mischief of section 32 of the Act. Second appellant did not file its counter statement. The first respondent accordingly filed their evidence by way of an affidavit dated 28.12.1991 of Smt. Maya Sampat Gujar along with certain other affidavits. The second appellant did not file its evidence in support of registration. First respondent filed their written arguments in the Trade Marks Registry on 31.7.1992 and served a copy thereof on the second appellant. Second appellant did not file any written arguments in support of their registration.
(3.) THE matter was heard by the Assistant Registrar of Trade Marks on 8.10.1992. Counsel for the first respondent was present and nobody appeared from the side of the second appellant. However, the Assistant Registrar remanded the file to the Head Office of the Registry at Mumbai for verifying whether renewal of the said mark was done after its expiry on 6.12.1990.;