Raghbir Singh, Vice Chairman - (1.) THE petition under sections 32, 46. 56 and 107 of the Trade and Merchandise Marks Act, 1958 filed as CO 23/89 in the High Court of Delhi has been transferred to this Board in terms of Section 100 of the Trade Marks Act, 1999 and has been numberd as TRA 100/2004/TM/DEL.
(2.) The petitioner has moved an application dated 10.8.2004 under Order 22 Rule 4 read with section 151 of CPC praying for deletion of Respondent No.1 as a party to the case. It has been submitted that to begin with M/s Anil Food Industries was a sole proprietorship firm of Smt.Kaushalya Devi, Respondent No.1. Through a partnership deed dated 3.4.1982, the firm became a partnership firm consisting of two partners, namely, R1 and R2. Thereafter, the firm was dissolved by virtue of a dissolution deed and R-2 had taken over the said firm being the sole proprietor of the firm. First respondent expired on 15.10.2000. Thus first respondent is no more the necessary party. Second respondent had no objection to this deletion. The said request was accordingly allowed. According to the petitioner, he is a holder of trade mark 'ANIL' under No.379288 in class 30 as of 5.8.1981. He is also holding registration of copyright in an artistic polybag titled 'ANIL' A-36682/82. First respondent obtained registration of trade mark 'ANIL' under No.350996 in class 30. Second respondent filed suit No.82/88 against the petitioner before the Delhi High Court to restrain the petitioner from using the trade mark 'ANIL'. In view of these circumstances, the petitioner is an aggrieved person in terms of section 56 of the Act.
(3.) THE petitioner claims that the impugned registration is unlawful and invalid and was wrongly registered and it wrongly remains on the Register of Trademarks for the reasons stated by him. Respondents played fraud upon the Trade Marks Registry in obtaining the registration. Respondents wrongly claimed that they are the proprietor of the trade mark 'ANIL'. THE user claimed by them as of 5.4.1972 was incorrect. THE bills filed in the Registry to obtain registration nearly 16 in number are fabricated. Certificate of registration was secured after six years after the advertisement of the trade mark and thus it is deemed to have lapsed and the mark was deemed to have been abandoned. THEre are contradictions in the proprietor's name. In the certificate of registration issued, Smt.Kaushalya Devi has been shown as proprietor. In Suit No.82/88 Anil Food Industries has been shown as a partnership firm. THE mark was not distinctive of mark of the respondent. On the date of application there had not been a user of the mark for the last five years and one month. THE mark 'ANIL' was deceptive on the date of its registration and it continues to be as such in terms of section 11(a) of the Act. THE mark contravenes the provisions of section 11(e) of the Act as on the date of this petition also. THE mark was wrongly registered and offends section 12(1) of the Act. THE petitioner also prayed for the exercise of discretion under section 18(4) of the Act.;