S. Usha, Member (T) - (1.) THIS appeal arises out of the order dated 29/11/2004 passed by the Assistant Registrar of Trade Marks by allowing the opposition No. MAS-59017 and refusing registration of Application No. 681345 in Class 24.
(2.) The appellant herein had filed on 25.09.1995 an application for registration of the trade mark TVS 50 with label device of moped written TVS 50 on its petrol tank in respect of lungies, dhotis and Towels in Class 24 under No. 681345 claiming user since 1.01.1986. The application was advertised before acceptance in Trade Marks Journal No. 1241 dated 16.02.2001 at page 4482. The respondent herein had filed their notice of opposition on 14.05.2001 opposing the registration of the above trade mark on various grounds. The respondents are carrying on an established business in respect of two wheeler vehicles under the trade mark TVS 50 and the same has been registered under No. 372863 B in respect of vehicles apparatus, apparatus for locomotive by land, air or water, mopeds in Class 12. By long and extensive use and wide sales promotional work, their goods under the impugned trade mark has acquired considerable goodwill and reputation among the public. The rival marks are identical. The appellants have not given any explanation for the adoption of an identical mark. The appellants have adopted an identical mark only to defraud the public. As the rival marks are identical, there is every possibility of deception and confusion being caused among the public.
(3.) REGISTRATION of the impugned trade mark is in contravention of the provisions of Section 11 (a), (b) & (e) of the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as the Act). The respondents denied the appellants user and also stated that not only the trade mark TVS 50 was copied by the appellants but also the use of the respondents' mark on the goods. The appellants adoption is itself dishonest and fraudulent. The applicants are not the proprietors of the Trade Mark. The appellants trade mark is not distinctive of the goods and so do not qualify for registration under Section 9 of the Act. The respondents are greatly affected by the appellants adoption of an identical mark.;