S. Jagadeesan, J. (Chairman) - (1.) THE appellant has filed this appeal against the order of the Assistant Registrar of Trade Marks, Ahmedabad, dated 10.4.1995, wherein the opposition No. AMD 187 of the appellant was disallowed.
(2.) S/Shri Jayanthilal Mahidas, Hiralal Mahidas, Smt. Damyantiben Mohanlal , Prakashkumar Mohanlal, Mukeshkumar Vithaldas and Smt. Charoo Mansukhlal, trading as M/s. Deepak Engineering Syndicate, the first respondent herein, filed an application No.433988 on 18.2.1985 for registration of the trade mark 'BULLET' in respect of Diesel Oil Engines and parts thereof included in class 7 of the Fourth Schedule of the rules framed under the Trade and Merchandise Marks Act, 1958, claiming the user since 1979. The said application was advertised before acceptance in the Trade Marks Journal No.971 dated, 16.11.1989 at page 1036. The appellant herein M/s. Enfield India Limited, filed notice of their intention to oppose the registration of the trade mark on the ground of its violative of Sections, 9, 11(a), 11(e), 12 (1) and 18(1) of the said Act. The first respondent filed their counter statement. Both the parties filed their evidence and the matter was heard by the Assistant Registrar of Trade Marks on 24.11.1994 and ultimately under the impugned order, the Assistant Registrar disallowed the opposition of the appellant and accepted the application of the first respondent for registration. Aggrieved by the same, the appellant filed an appeal on the file of the High Court of Gujarat at Ahmedabad in Appeal No.2/1995. By virtue of Section 100 of the Trade Marks Act, 1999, the said appeal stood transferred to this Appellate Board and numbered as TA/252/2004/TM/AMD. We heard the appeal during our sitting at Ahmedabad on 20.12.2004. Shri A.A. Mohan of M/s. Mohan Associates, Chennai, appeared on behalf of the appellant and Shri Y.J. Trivedi, appeared on behalf of the first respondent.
(3.) THE learned counsel for the appellant contended that the appellant is the registered proprietor of the trade mark 'BULLET' under No.203761 in class 12 and also under No.387152 and 387054. All these registrations are in respect of motor cycles. THE Bullet motor cycles from the Enfield India Limited are the well known products among the public and has attained distinctiveness in respect of those products. THE registration of an identical mark by the first respondent in respect of their goods, viz., Diesel Oil Engines would cause confusion and deception in the trade as well as among the public and hence the registration offends Section 11(a) of the said Act. THE Assistant Registrar disallowed the opposition of the appellant only on the ground that the goods are different and as such, Section 12(1) of the Act was not attracted and also the trade channel for the goods of the first respondent are different from the trade channels of the appellant and hence, there cannot be any confusion and therefore the prohibition contemplated under Section 11(a) was not attracted. THE said reasoning of the Assistant Registrar is totally contrary to the principles laid down by various High Courts which principles, atleast in some cases were confirmed by the Supreme Court also. He also relied upon two judgments of this Appellate Board reported in 2004 PTC 634 - S.K. Patel v. Deputy Registrar of Trade Marks and Ors. and 2004 PTC 647 - Usha Rani v. Registrar of Trade Marks and Anr. and submitted that the Appellate Board has referred to the judgments of various High Courts and as such, he does not want to repeat the same.;