Raghbir Singh, Vice Chairman - (1.) APPEAL Nos. 1 to 10 of 1993 were filed in the High Court of Gujarat at Ahmedabad and have been transferred to this Board in terms of section 100 of the Trade Marks Act, 1999 and numbered as TA No. 240 to 249/04.
(2.) Appellant filed application Nos. 423258 to 423267 in class 7 on 16.6.1984 for registration of label mark consisting of word 'FIELD MARSHAL' in different Indian languages. The specification of goods in all the 10 applications are 'Diesel Oil Engines' (not for land vehicles) and parts thereof, centrifugal pumps, submersible pumps, electric motors (not for land vehicles), mono block, foot valve being all goods included in class 7 and the user claimed is since the year 1975. The mark was advertised in the Trade Marks Journal No. 960 dated 1.6.1989. First respondent filed opposition on 28.7.1989 contending inter-alia that they are the prior user of the mark being the registered proprietor of trade mark No. 228867 dated 13.5.1965 in class 7 for the specification of goods reading as flour mills, circulating and centrifugal pumps, couplings for machines, pulleys included in class 7 and valves (parts of machines). They submitted that the impugned mark is objectionable under sections 11(a), 11(e) and 12(1) of the Act and also prayed for the exercise of discretion vested in the Tribunal under section 18(4) of the Act in their favour.
(3.) APPELLANT filed their counter statement on 20.3.1990 controverting the averments of the first respondent. They also submitted that they are the registered proprietors of the mark 'FIELD MARSHAL' under registration Nos. 224879 dated 16.10.1964, 252070 dated 4.10.1968 and 252071B dated 4.10.1968 in class 7. They also contended that the trade mark No. 228867 acquired by the first respondent from the previous holder is tainted and is under challenge for rectification in the Delhi High Court.;