Z.S. Negi, Vice-Chairman - (1.) THIS appeal under Section 91 of the Trade Marks Act, 1999 (hereinafter referred to as the Act) is directed against the letter of Registrar of Trade Marks dated 11.3.2005 addressed to the respondent No. 2 enclosing therewith a copy of notice of opposition in pursuance of Section 21(1) of the Act. The appellant, along with the appeal, has filed miscellaneous petition Nos. 61/2005 - for stay for registration of trade mark in favour of the respondent No. 2 and early hearing of the appeal, and 62/2005 - for fixing the hearing of the matter at Delhi. During the pendency of the appeal, the appellant has filed yet another miscellaneous petition No. 45/2006 for taking the additional facts on the record, allowing the appeal and directing that application No. 1219400 be rejected by treating the trade mark as non-registrable for the goods mentioned in class-12.
(2.) In February, 1998, Shri Satish Sharma, the proprietor of the Bharat Auto Products, filed application No. 791190 for registration of trade mark "Auto Brake", in class-12, in respect of Hubs and brake drums for trucks, buses, tractor-trailors and animal driven vehicles, clutch and gear housings, chassis parts, helper brackets, shacks, etc. Subsequently, Bharat Auto Products assigned the trade mark to Bharat Auto and Agro Industries, a proprietorship firm which came into being in 1999. The said application No. 791190 was refused but order with regard to this effect has not been given. However, in response to TM-15 dated 11.11.2005, the Assistant Registrar of Trade Marks, Mumbai, by his letter No./TOP/2002 dated 6.2.2006, informed the grounds of refusal to Shri Prashant Sharma, Advocate as under: As the mark is "Auto Brake" and the goods are Hubs and brake drums for trucks, buses, tractor-trailors and animal driven vehicles, clutch and gear housings, chassis parts, helper brackets, shacks, etc. The trade mark "Auto Brake" is connected with the goods i.e. which is descriptive to the goods and hence the objection under Section 9(1)(b) of the Trade Marks Act, 1999 is applicable and the mark is refused. Section 9(1)(b) of the Trade Marks Act, 1999 states that the trade mark which consists exclusively of the mark or indications which may serve in the trade to designate kind, quality, quantity, intended purpose, values, geographical origin or time of production of the goods or rendering of the service or other characteristics of the goods or service shall not be registered. Thus by applying the above objection of the Trade Marks Act, 1999 the application No. 791190 in class 12 is refused. In July, 2003, Mrs. Chitvan Sharma, trading as Sainath Auto Industries filed application No. 1219400 for registration of trade mark "Autobrake" in class-12, in respect of automobile parts (Brake Drums, Hubs, Clutch, Gear Box, Housing U. J Cross & Chasis Parts for Trucks, Buses and Tractor Trailers) and this application was advertised in the Trade Marks Journal No. 1323 Supplementary (1) dated 5.1.2005 at page 631. The appellant filed notice of opposition No. 186632 to the application for registration. The Registrar of Trade Marks sent a copy of said notice of opposition to the respondent No. 2 for filing counter-statement thereto. Against that letter, the appellant has filed this appeal seeking that the impugned order be quashed, application for registration be dismissed and objection filed by the appellant be allowed.
(3.) AFTER completion of procedural formalities, the appeal and miscellaneous petitions came up before us for hearing on 18.9.2007 when Shri Prashant Sharma, Advocate appeared for the appellant and Shri H.L. Verma, Advocate appeared for the respondent No. 2. AFTER conclusion of the arguments, permission to file written submission was given to the learned Counsel for the appellant with a condition that a copy of the written submission should be sent to the other side.;