S. Jagadeesan, Chairman - (1.) THIS appeal is directed against the order of the Assistant Registrar of Trade Marks dated 2.2.1998 rejecting the application of the appellant herein for registration of their trade mark.
(2.) The appellant applied for registration of their trade mark word 'VENUS' and monogram under application No.489540 on 20.4.1988 in respect of chokes for fluorescent tubes, patties and starters included in class 9, claiming user from 1.4.1988. The said application was advertised in the Trade Marks Journal No.1034 dated 1.7.1992 at page 382. The second respondent M/s Standard Electric Appliances on 13.7.1992 filed their notice of opposition on the grounds of its violative of the provisions of the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as the Act). On 27.10.1993 the appellant filed their counter statement. Thereafter the second respondent filed evidence in support of their opposition and the appellant also filed their evidence in support of their application. After completing the formality the matter was heard by the Assistant Registrar of Trade Marks. Under the impugned order the Assistant Registrar rejected the application of the appellant and allowed the opposition DEL-7788 of the second respondent on the ground that the second respondent is the registered proprietor of the trade mark 'VENUS' in respect of water heaters, oven, immersion heaters and water coolers included in class 11 and they are using the same since 1961. The impugned mark being the same, the registration would offend section 11(a) of the Act in view of the mark of the second respondent having become a well known mark. The Assistant Registrar further held that the appellant cannot be considered to be the proprietor of the impugned mark since the same mark was already registered in the name of the second respondent. Aggrieved by the same the appellant filed the appeal in the High Court of Delhi at New Delhi in CM (M) 414/98. By virtue of Section 100 of the Trade Marks Act, 1999 the said appeal has been transferred to this Board and numbered as TA140/03. During our sitting held at New Delhi on 16.2.2005 we listed the appeal for disposal. Learned counsel Shri Mohan Vidhani appeared on behalf of the appellant and there was no representation on behalf of the second respondent.
(3.) LEARNED counsel for the appellant contended that the Assistant Registrar has committed a grave error in overlooking the advertisements under the impugned mark which is word 'VENUS' with a monogram and the goods for which the registration is sought for also falls under class 9. The second respondent's mark is word per se 'VENUS' and their goods falls under class 11. When the goods are different and there is a significant difference between the two marks, there cannot be any question of confusion as concluded by the Assistant Registrar. The Assistant Registrar has also erred in proceeding on the basis of the theory that the second respondent's mark is a well known one and also had attained reputation.;