Z.S. Negi, Chairman - (1.) THIS is an application filed by the applicant for the removal of the registered trade mark No. 988227 in class 25 from the register under Sections 47, 57 and 125 of the Trade Marks Act, 1999 (hereinafter referred to as the Act).
(2.) The present applicant, trading as Nischal's Klick Selections, which expression shall include its predecessors in title and interest, is a partnership firm consisting of Shri Jagbir Singh and Shri Gagandeep Singh as the partners, are stated to be engaged in the business of manufacture and/or sale of wide range of readymade garments including shirts, trousers, jeans, jackets, coats, gents' suits, kurta pyjama, etc. since the year 1985. It is averred that the applicant in the year 1985 adopted the trade mark KLICK in respect of the goods of its manufacture and sale and has since then been using the same continuously and extensively. By virtue of the extensive and continuous use of the mark, the applicant has acquired an exclusive right to use the trade mark KLICK in respect those goods as a proprietor thereof under the common law. Apart from this, the applicant claims the statutory rights to the exclusive use of the trade mark KLICK by virtue of its registration under No. 564524 in class 25 as of the date 27.12.1991. The said registration is renewed for a period of ten years from 27.12.2005 and the same is valid, subsisting and is in full legal force. It is further averred that all the assets and liabilities including the intellectual property rights of the applicant's predecessor firm (NISCHAL ENTERPRISES) along with the goodwill attached thereto as on 23.3.2007 was taken over on 24.3.2007 by the applicant and a requisite request on Form TM-23 concerning the said trade mark has been filed with the Registrar of Trade Marks and the same, though pending, is likely to be allowed. It is the contention of the applicant that the adoption and/or use of the mark KLICK or any other mark as may be identical and/or deceptive thereto on the part of someone else without the consent and/or permission of the applicant in respect of goods of the applicant's manufacture and/or sale and/or any other goods of the same description and/or goods which are cognate and allied in nature to the goods of the applicant or the goods which are dealt with by the same class of purchasers is bound to cause confusion and deception amongst the purchasing public and the members of the trade who are bound to be mislead into connecting such goods with the goods of the applicant in one or the other manner. It is the case of applicant that in the year 1993, its attention was drawn to the adoption and use of the mark/name KLICK in respect of readymade garments on the part of N.R. Sons also trading as KLICK Sellers, Karol Bagh, New Delhi and KLICK Exclusif, Rani Bagh, Delhi. On a criminal complaint made by the applicant to the Additional Chief Metropolitan Magistrate, Delhi, the premises of M/s. N.R. & Sons were searched by the police officials of Crime Branch, Delhi and large quantity of goods bearing the impugned mark/name KLICK were recovered from the said premises and thereupon the firm executed an unconditional undertaking in favour of the applicant on 28.1.1994 not to use the mark/name KLICK or any other mark deceptively similar thereto in respect of the readymade garments or any other goods of the same description and/or any other cognate or allied goods. A similar undertaking was executed on 31.1.1994 by another firm, the CLICX Point, Paschim Vihar, New Delhi, not to use the mark/name CLICX, CP CLICX Point or KLICK or any other mark deceptively similar thereto. An application No. 1235904 in class 25 for registration of mark CLIC word per se was advertised in the name of the respondent No. 1, wherein association of the said application was not sought with any other application. The said application was opposed by the applicant vide opposition No. DEL-189885 and so far no counter-statement thereto has been served on the applicant. Yet another application No. 1235897 dated 12.9.2003 of the respondent No. 1 for registration of label mark was advertised on 1.9.2006 and the same was opposed by the applicant vide opposition No. DEL-253546 which is pending. For application No. 1235897 dated 12.9.2003, the respondent No. 1 had sought its association with the application No. 988227. On enquiring about the said application, the applicant has come to know that the said application No. 988227 for registration of the trade mark CLICK CASUALS was advertised on 25.9.2003 which subsequently proceeded for registration as the same was missed to be opposed by the applicant. Aggrieved with the said registration, the applicant has sought cancellation of the registration in totality on several grounds including the grounds of violation of the provisions of Sections 9, 11 and 18 of the Act.
(3.) IN response to a copy of the application served on the respondent No. 1 for filing counter-statement, the respondent No. 1, without filing his counter-statement, has vide his letter dated 12.3.2008 addressed to the Registrar of Trade Marks, New Delhi, copies thereof endorsed to this Appellate Board and the applicant, stated thus: WE ACKNOWLEGE THE RECEIPT OF YOUR LETTER NO: ORA/163/07/TM/DEL/4523 DATED: 9-10-2007 AND IN REPLY THERE-TO SUBMIT AS UNDER: That we are not at all using the trade mark CLIC on our product our Registered TRADE MARK CLIC under No. 988227 in class 25 Therefore we hereby cancelled our above noted Registration and request you to treat the same as cancelled with no order as to cost.;