S. Jagadeesan, J. (Chairman) - (1.) THE appellant has preferred this appeal against the order of the Assistant Registrar of Trade Marks, New Delhi, dated 6.3.1998, rejecting the application of the appellant.
(2.) The appellant filed an application No.429975 on 20.11.1984 for registration of the trade mark in the form of label consisting of the word 'GOLDCON-D' in respect of infant foods including Glucose in class 5 of the Fourth Schedule of the Rules framed under the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as the Act), claiming user since 27.5.1984. The said application was advertised before acceptance in the Trade Marks Journal No.935, dated 16.5.1988 at page 195. The first respondent gave notice of their intention to oppose the registration of the impugned mark on 14.7.1988 on the ground of its violative of the provisions of the said Act. On 20.3.1989, the appellant filed her counter statement and also the grounds in rebuttal to the objections of the first respondent. On 28.8.1989, the first respondent filed their evidence in support of their opposition. The appellant also filed evidence in support of the application. After the completion of the formalities prescribed under the statute, the matter was listed for hearing on 4.3.1997. After hearing the learned counsel on either side, under the impugned order, the Assistant Registrar of Trade Marks, rejected the application of the appellant on the ground that the impugned mark of the appellant is similar to that of the registered trade mark 'GLUCON-D' of the first respondent. The goods are also of the same description and as such, the prohibition imposed under Section 12(1) of the Act is attracted. So far as the bar under Section 11(a) of the Act is concerned, the Assistant Registrar held that the registration of the impugned mark would cause confusion in the trade and among the public as both the marks are identical and the goods are also of the same description. The Assistant Registrar further held that the appellant cannot claim proprietorship of the impugned mark as she has copied the well known trade mark of the first respondent. Aggrieved by the same, the appellant preferred the appeal before the High Court of Delhi at New Delhi, in CM(M) 424/1998. During the pendency of the appeal before the High Court of Delhi, a petition in CMP 1686/2000 was filed to implead the second respondent. As there was no objection, the said application was ordered on 29.9.2000 on the ground of the assignment in favour of the second respondent.
(3.) BY virtue of Section 100 of the Trade Marks Act, 1999, now the appeal stood transferred to this Board and numbered as TAM/223/2004/TM/DEL.;