S. Jagadeesan, J. (Chairman) - (1.) THE appellant filed this appeal aggrieved by the order of the Assistant Registrar of Trade Marks dated 27.8.1992 dismissing their opposition DEL-4662.
(2.) First respondent herein filed application No.374126 on 30.3.1981 for registration of the trade mark 'SONICO' with the first letter 'S' and the last letter 'O' in bold and double the size of the other letters in respect of rubber bushes for use in automobiles included in class 12 of the Fourth Schedule of the Rules framed under the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as the Act). First respondent claimed user since 28.12.1980. The said application was advertised before acceptance in Trade Marks Journal No. 895 dated 16.9.1986 at page 481. On 17.12.1986 M/s Sony Kabushiki Kaisha trading as M/s Sony Corporation, joint stock company organized under the laws of Japan gave notice of their intention to oppose the registration of the impugned mark on the ground of its violative of sections 9, 11, 12 and 18 of the Act. First respondent filed their counter statement denying all the material objections raised by the appellant. The appellant filed evidence in support of their opposition and the first respondent also filed evidence in support of their application by way of affidavits annexing some documents. After the completion of formalities the matter was listed for hearing by the Assistant Registrar on 12.2.1992. After hearing the respective counsel, the impugned order was passed rejecting the objections raised by the appellants and found that the impugned mark is invented word having no meaning, thereby with reference to or quality of the goods and as such the objection under section 9 is not maintainable. Though the Assistant Registrar found that the impugned mark is identical to the registered trade mark of the appellant, but he held the objection under section 12(1) of the Act cannot be maintained as the goods are entirely different. The objection under section 11(a) cannot be sustained on the ground that the impugned mark is not similar both visually and phonetically to that of the appellant's trade mark. The difference between the two trade marks coupled with the difference in the nature of goods of the first respondent will avoid any likelihood of confusion. Lastly the objection under section 18(1) of the Act of the appellant was overruled on the ground that the first respondent adopted the trade mark 'SONICO' from their trading style Soni Industrial Corporation by taking its first word 'SONI' and 'CO' from the word corporation and further the goods of the first respondent being different, the objection was without any merits. Aggrieved by the order of the Assistant Registrar of Trade Marks the appellant filed appeal in CM(M) 67/93 on the file of High Court of Delhi at New Delhi and the same has been transferred to this Board by virtue of section 100 of the Trade marks Act, 1999 and numbered as TA/313/2004.
(3.) THE appeal was listed for hearing on 15.2.2005 during the sitting of the Board at Delhi. Learned counsel Shri A.R.Lall assisted by Ms. Anjula Chopra appeared on behalf of the appellant and learned counsel Shri V.P. Ghiraiya appeared on behalf of the first respondent.;