S. Jagadeesan, J. (Chairman) - (1.) THE petitioner herein filed rectification petition No. 1 to 4 of 1999 on the file of High Court of Gujarat at Ahmedabad and the same were transferred to this Board in compliance of section 100 of the Trade Marks Act, 1999 and numbered as TRA 68 to 71/04. THE first respondent herein in the affidavit in reply to the rectification petition No. 1 of 1999 has stated that the contentions / averments made in all the applications are same and crave leave to refer the affidavit in reply in rectification petition No. 1 of 1999 to be treated as a reply in respect of the other petitions. Moreover the counsel on either side also agreed that the parties are the same in all the petitions, issues involved are also the same and the petitions can be disposed of jointly. Hence all the petitions were taken up jointly for disposal during the sitting of the Board at Ahmedabad on 21.12.2004.
(2.) The petitioners have filed MP Nos. 132 to 134 of 2004 to correct the prayer portions in the rectification petitions by incorporating the registration number of the mark that has to be rectified, in view of the clerical mistakes in mentioning the said registration numbers. Since it is either a typographical error or a clerical mistake the learned counsel for the first respondent fairly represented that he has no objection for the corrections. Hence the petitions are ordered. The petitioner filed TRA No. 68/2004 for the removal of the first respondent's trade mark 'PRIYA' registered on 28.2.1983 under No. 353713 in class 32 in respect of squash, juices, syrup and beverage within the State of Maharashtra and Gujarat. The petitioner filed TRA No. 69/2004 for the removal of the first respondent's trade mark 'PRIYA' registered on 31.3.1992 under No. 366103B in class 32 in respect of pickles and chutneys. The petitioner filed TRA No. 70/2004 for removal of first respondent's trade mark 'PRIYA' registered on 30.4.1992 under registration No. 367909B in class 29 in respect of canned fruits and vegetables and TRA No. 71/2004 for removal of first respondent's trade mark 'PRIYA' registered on 30.10.1990 under registration No. 367910B in class 30 in respect of tomato ketchup and cornflakes.
(3.) THE case of the petitioner is that they are carrying on the business in the name and style of Priya Foods Private Limited since the year 1974 and adopted the trade mark 'PRIYA' in respect of their goods including pickles from 1979-80. THE said mark attained a good reputation and had become a well-known mark throughout India. THE annual turnover of the petitioner for the year 1997-98 was Rs.1881.66 lakhs. THE promotional expense for the same was Rs.27.49 lakhs. THE petitioner also engaged in exports of its 'PRIYA' brand pickles to various countries like Australia, Baharin, Bangladesh, Canada and also to the European countries, Malaysia etc. THE first respondent had obtained registration in respect of impugned marks in these petitions. Though several grounds were raised in the petitions the learned counsel for the petitioner confined with regard to the requirement of section 46(1) (b) of the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as the said Act), that is, non user by the first respondent of their registered mark for a period of five years and one month prior to the filing of these petitions for rectification. In view of the same it is unnecessary for us to extract the other pleas raised by the petitioner in these petitions.;