M.H.S. Ansari, J. (Chairman) - (1.) THIS appeal is directed against the Order No. TLA/22340 dated 10 October 2003 passed by the Assistant Registrar of Trade Marks.
(2.) On 12.2.1996, appellant herein applied for registration of trade mark "SOLO" in respect of 'games, sporting articles, sports equipment' under application No. 698041 in class 28 as 'proposed to be used'. A preliminary objection was raised by the Registrar under Section 12(1) i.e. on the grounds of deceptive similarity. The mark applied for by the appellant, was found identical with the earlier trade mark "SOLOTOY" cited in the examiners report as the conflicting mark. Further, the goods being games, sporting article etc. set out in the application for registration were similar to the goods 'play things' under the earlier mark on record, the application was accordingly rejected even before it was advertised. Being aggrieved thereby this appeal is filed under Section 91 of the Trade Marks Act, 1999 (hereinafter referred to as the Act). Shri P.S. Mahapatra, Ld. Advocate for the appellant contended that the appellants are registered proprietors of the trade mark "SOLO" under No. 660008B registered in the year 1995. This registration is also in respect of class 28 goods namely, 'sporting articles'. The conflicting trade mark under No. 499101 was also cited in the examination report issued in registration No. 660008B. The Ld. Assistant Registrar, however, allowed that application to proceed for registration. The rival trade marks "SOLO" and "SOLOTOY" are both visually and phonetically different. Hence there cannot be any cause of confusion or conflict in the market, it was contended.
(3.) LD. counsel further contended that the conflicting trade mark "SOLOTOY" under registration No. 499101 has not been renewed since 10 October 1995. This fact, though brought to the notice of the LD. Assistant Registrar, was ignored. It was urged that reliance could not be placed upon a trade mark which is no longer valid as on the date of consideration of the application of the appellant herein.;