Raghbir Singh, Vice Chairman - (1.) APPEAL No.9/1996 filed in the High Court of Gujarat at Ahmedabad under the Trade and Merchandise Marks Act, 1958, has been transferred to this Board in terms of Section 100 of the Trade Marks Act, 1999 and has been numbered as TA/RECTT/265/2004/TM/AMD.
(2.) The first respondent filed an application under Section 46 and 56 of the Trade and Merchandise Marks Act, 1958 before the Assistant Registrar of Trade Marks, Ahmedabad for rectification of the Register in respect of the trade mark No.419705 and accordingly the hearing was held by the Assistant Registrar of Trade Marks on 20.8.1993. The trade mark 'VIPUL' stood registered as from 27.3.1984 in favour of Sukha Mal and Sons, trading as Vipul International, Surat, the appellant herein, in respect of Sarees in class 24 on the basis of user claimed from 7.3.1980. The first respondent filed an application for rectification to remove the mark from the Register on 4.11.1991. The important grounds taken for rectification are:- (a) The first respondent had been using the trade mark VIPUL over a long period in relation to textile piece goods . The first respondent has filed an application for registration of the mark on 30.12.1983 under No.415249B in class 24 claiming user from December, 1980, which application has been accepted and advertised. The appellant herein filed an opposition to that registration. (b) The appellant herein had filed an application on 27.3.1984 in respect of Sarees under No.419705B and falsely claimed prior user over that of the first respondent's application. (c) By making false representations and by filing false documents, they have got their mark registered. (d) Owing to inadvertence, the appellant's application was not opposed and it finally got registered. (e) The appellant's mark was wrongly registered and an entry relating thereto on the Register is without sufficient cause and is wrongly remaining on the Register. (f) The registration of the mark was obtained by fraud, misrepresentation and by claiming false user by producing fabricated documentary evidence. (g) The registration of the mark was obtained in contravention of Sections 9 and 12(1) and thus, the appellants are not the real proprietors of the mark under Section 18 of the Act.
(3.) THE Assistant Registrar held that the first respondent is the person aggrieved for the purposes of Section 56 of the Act. She further held that the registration has been obtained without sufficient cause and the mark was registered on mis-representation. She further held that the mark was registered in contravention of the provisions of Section 11 of the Act and thus, it is an entry wrongly remaining on the Register in view of the Act. Thus, in conclusion, she held that the Register is liable to be rectified by removal of the mark from it.;