Raghbir Singh, Vice-Chairman - (1.) THE present appeal has been filed in the Board under Section 91 of the Trade Marks Act, 1999 against the order dated 31st March, 2004 of the Assistant Registrar of Trade Marks, Kolkata.
(2.) First Respondent herein filed an application on 25.8.1994 being application No. 638073-B in class 3 for registration of the trade mark consisting of the word 'RAMAYAN' with the device of crown in respect of agarbatties, dhoops, incense sticks and perfumeries etc. He claimed user since 1.1.1987. He further filed a request in form TM-16 dated 6.8.1996 to rectify the user as from 1.1.1981 which was allowed by the Assistant Registrar of Trade Marks. Appellant herein filed notice of opposition on 5.9.2001 raising objections under Sections 9, 11(a), 11(b), 11(e), 12(1), 12(3) and 18(1) of the Trade and Merchandise Marks Act, 1958. In the usual course, the first respondent filed his counter statement and the appellant filed evidence in support of his opposition. The first respondent also filed an affidavit as evidence in support of the application. The Assistant Registrar of Trade Marks heard the matter on 18.12.2003 and he identified that the opposition was mainly based under Sections 9, 11(a), 11(e), 12(1), 12(3) and 18(1) of the Trade and Merchandise Marks Act, 1958.
(3.) LEARNED counsel for the appellant argued before the Assistant Registrar that the impugned mark being name of a religious book cannot become the subject matter of monopoly for an individual. He cited as many as seven cases which the Assistant Registrar chose hot to discuss except for referring to the citations of those cases in his order. The Assistant Registrar put reliance upon the copies of certain sale invoices filed by first respondent, the panchnama dated 28.10.1998 entered between the appellant and the first respondent and copy of the registration certificate as SSI unit dated 26.10.1995 granted by the Bihar Government to the appellant. He also referred to the applications for registration of the mark by the appellant being application Nos. 723779 and 724212 in class 3 claiming user since 5.11.1986 and found that the copies of the bills and invoices which have been filed by the appellant pertain to the year 2002. The Assistant Registrar found that the mark consisting of the device of crown and the word 'RAMAYAN' is capable of distinguishing the goods of first respondent and the word 'RAMAYAN' is not included in the list of marks not registrable as per the directions of Central Government issued under Section 23(1) of the Trade and Merchandise Marks Act, 1958. He found that the first respondent had proved adoption and user of the trade mark 'RAMAYAN'. He rejected all the grounds taken in notice of opposition and chose not to exercise his discretion under Section 18(4) of the Act and ordered for registration of the mark.;