S. Jagadeesan, J. (Chairman) - (1.) THE appeal is directed against the order of the Assistant Registrar of Trade Marks, New Delhi, dated 2.7.1998, disallowing the TM 16 filed by the appellant.
(2.) The second respondent herein M/s. Scooter India Limited., filed an application No.480772 on 9.11.1987 for the registration of the trade mark 'SUNNY' in respect of their goods two wheeler, land vehicles and three wheeler, land vehicles and parts and fittings thereof after amendment. The appellant filed opposition and after the amendment was allowed in favour of the second respondent with regard to the description of goods, the appellant filed TM 16 on 19.3.1997 seeking amendment of the opposition elaborating the earlier statement made in their opposition. The said TM 16 was disallowed under the impugned order. The appellant filed the appeal on the file of the High Court of Delhi at New Delhi in CM(M) 470/98 which has been transferred to this Board by virtue of Section 100 of the Trade Marks Act, 1999. During our sitting at Delhi on 17.2.2005, we heard Shri Surinder Singh for the appellant and Ms. Rekha Aggarwal for the second respondent.
(3.) THE learned counsel for the appellant contended that the second respondent filed the application for registration in respect of vehicles and parts thereof. Subsequently, TM 16 was filed by the second respondent seeking amendment of the description of goods from "vehicles and parts thereof" to "two wheelers, land vehicles and three wheelers, land vehicles and parts and fittings thereof.". THE said TM 16 was allowed in favour of the second respondent. THE appellant filed their objection only in respect of the description of property as originally applied for, that is, vehicles and parts thereof. Now that the description of the property having been amended, it is necessary for the appellant to elaborate in detail their opposition. Otherwise, there is every possibility for the curtailment of the claim of the appellant on the ground of want of pleadings. Moreover, in page 7 of the impugned order, the Assistant Registrar has come to the conclusion that the ground of objection already filed by the appellant as well as the amendment sought for now in TM 16 are the same and the amendment sought for do not incorporate any additional grounds of opposition and in view of the said finding, the TM 16 does not change plea in opposition. In that case, the second respondent is not prejudiced in any way and on this ground also TM 16 filed by the appellant ought to have been allowed. Disallowing the TM 16 of the appellant is not at all justified.;