S. Jagadeesan, J. (Chairman) - (1.) THE appellant filed the application No.522509 on 9.1.1990 for registration of the trade mark JOLEN in respect of hair bleach, skin cream and lotions, astringents, toilet. Colognes, perfumes, eye make up, face powder, rough nail polish included in class 3 of the Fourth Schedule of the rules framed under the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as the Act), claiming to be a proposed user. THE same was advertised before acceptance in the Trade Marks Journal No.1109, dated 16.8.1995. On 18.12.1995, the second respondent herein as well as one Shri Ashok Kumar, son of the second respondent Mr. Shoban Lal, trading as Cosmo International filed separate notices of opposition which were registered as No.DEL 9820 and 9821. THE appellant filed their counter statement on 30.9.1996 separately for each of the opposition. THE respondents filed the evidence in support of their opposition and the appellant also filed the evidence. After completion of the formalities, the matter was taken up for hearing by the Assistant Registrar of Trade Marks, New Delhi. Under the impugned order dated 11.3.1999, the Assistant Registrar allowed the oppositions of the respondents and rejected the application of the appellant for registration. THE Assistant Registrar of Trade Marks found that the appellant is claiming the trans border reputation through the advertisements in foreign magazines and however, the appellant did not establish the circulation of those foreign magazines in India. Further, the appellant failed to establish the circulation of their products in India and as such their mark did not have any reputation or goodwill in India. On the other hand, the respondent had proved prima facie that their mark had attained a good reputation since 1987 and the registration of the impugned mark of the appellant would cause confusion and deception. Aggrieved by the same, the appellant filed an appeal on the file of the Delhi High Court in CM(M) No.422/1999, which stood transferred to this Board by virtue of Section 100 of the Trade Marks Act, 1999, and numbered as TA/151/2003/TM/DEL.
(2.) The second respondent filed an application for registration of their mark 'JOLEN' for which the appellant filed opposition. The Assistant Registrar, by order dated 11.10.2000 allowed the application of the second respondent and rejected the opposition of the appellant. The appellant filed an appeal against the said order in TA/126/2003/TM/DEL (CM(M) 104/2001) Delhi High Court). The learned counsel for the appellant having argued the said appeal represented that the same argument would cover the question involved in this appeal and the evidence to be discussed in this appeal also. The learned counsel for the second respondent also concurred with the learned counsel for the appellant. We have elaborately discussed the evidence in our order in TA/176/ 2003/TM/DEL and virtually the finding in the said appeal would cover the issues involved in this appeal and as such, the finding rendered therein would suffice for the disposal of this appeal also.
(3.) AS we have held in the other appeal that the second respondent established their use of the mark 'JOLEN' since 1987 and obtained registration also, the registration of the identical mark of the appellant would cause confusion and deception in the trade, especially, when the goods of both the parties fall under class 3 of the Fourth Schedule of the Rules framed under the Trade and Merchandise Marks Act, 1958. We have further held that the appellant has failed to produce any evidence to establish their trans-border reputation of their mark in India. The main source for their reputation is relied upon by the appellant being the advertisement in foreign magazines, it is for them to establish that those magazines are in circulation in India. The appellant did not produce any piece of evidence to that effect. AS we have discussed the evidence available on record in detail in the other appeal, following the findings rendered therein, we dismiss this appeal without any cost.;