S. Usha, Technical Member - (1.) THESE appeals have arisen out of the orders passed by the Assistant Registrar of Trade Marks on 15.3.2000 allowing the opposition Nos. DEL-8848 and DEL-8254 and dismissing the application Nos. 479031 and 471518 respectively filed under the provisions of the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as the Act). As the two applications were for two similar marks, the parties and the facts were one and the same, the Registrar had passed a common order against which two appeals have been filed.
(2.) The appellants M/s J & P Coats Limited filed an application for registration of the trade mark 'ANCHOR' word per se under No. 471518 in class 24 claiming as proposed to be used mark and the trade mark 'ANCHOR PRINTED CANVAS' under No. 479031, in class 24 claiming user since December, 1982 in respect of tapestry and embroidery, printed canvas and textile articles. In application No. 479031, the appellants filed Form TM-16 to amend the date of user and by an order dated 11.2.1994, the date was amended to read as used since December, 1982. Both the applications were advertised in the Trade Marks Journal and the respondent No. 1 herein had filed the notice of opposition opposing the registration of the trade marks. The grounds of opposition were as under: (a) The respondent No. 1 was carrying on business for last several years. (b) The respondent No. 1's predecessor conceived and adopted the trade mark as early as 1980 and has been in continuous use since then for textile goods. (c) The respondent No. 1 became the subsequent proprietor by virtue of a deed of assignment and the respondent No. 1 had been using the said trade mark 'ANCHOR' since 1.1.1988. (d) The respondent No. 1 had filed an application for registration of the trade mark 'ANCHOR' under No. 598507 on 1.6.1993 claiming user since 1980. (e) The respondent No. 1's trade mark 'ANCHOR' had earned goodwill and reputation among the public and that the public associate the said trade mark with that of the respondent No. 1. (f) The rival trade marks and the goods are identical; the trade channels, the class of customers are the same and as such triple identity is established. (g) The adoption of an identical mark by the appellants was only to trade upon the goodwill earned by the respondent No. 1/opponent. (h) The use and registration of an identical mark by the appellant will cause confusion and deception among the public and was hence prohibited under Section 11(a) and (e) of the Act. (i) The registration is prohibited under Section 12(1) of the Act as the goods are same and the rival marks are deceptively similar. (j) The application for registration of the trade is colourable imitation and that the appellant cannot claim to be the proprietor of the mark under Section 18(1) of the Act.
(3.) THE appellants herein / applicant before the Registrar filed their counter statement denying the various averments made in the notice of opposition. THE appellants submitted that they had been carrying on the business of manufacturing and marketing embroidery threads and embroidery kits and they had bonafidely adopted the trade mark 'ANCHOR' in the year 1942 and prayed that the notice of opposition be dismissed.;