S.Usha, J. - (1.) THIS appeal is arising out of the order dated 7th September 2001 by the learned Assistant Registrar of Trade Marks, New Delhi dismissing the opposition No. DEL/T.640/52062 and allowing the registration under application No. 477156 in class 34 to proceed to registration subject to condition that the sale be restricted to the State of Uttar Pradesh.
(2.) THE 1st respondent filed an application under the Trade and Merchandise Marks Act, 1958 (in short the Act) on 19/08/1987 for registration of a label mark consisting of the word "Sadhu Bidi" and Bidi No. 8 and a device of a saint as its distinguishing feature in class 34 in respect of Bidi claiming user since 1st April 1983. The said application was advertised in the Trade Marks Journal No. 1160 dated 1st October, 1987 at page 1310. The mark was advertised before acceptance with a condition that the applicants shall have no right to the exclusive use of the word "special" and "Bidi No. 8" and some other descriptive expressions. The appellants filed their notice of opposition on Form TM -5 on 3rd December 1997 on the grounds that the registration if granted would be in contravention of the provisions of the Act. The 1st respondent had filed their counter statement on the 22nd March, 1999. After the formal procedures were completed, the matter was heard by the Assistant Registrar on 28th February, 2001. The Assistant Registrar passed the impugned order on 7th September, 2001 on the grounds that the application for registration has been allowed under Section 12(3) of the Act under the circumstances that the mark is part of the company's name and that the mark has been in use for a considerable period of time; that the application is allowed under Section 18(1) of the Act as the adoption is honest for the opponents/appellants were in the market in the Northern part of India on the date i.e. on 1st April.1983 when the 1st respondent started using the impugned trade mark and are thus the proprietor of the trade mark. The registration was granted with area restriction as to sale in the State of Uttar Pradesh only.
(3.) AGGRIEVED by the said order the appellants filed the appeal. The appeal has been filed on the following grounds. The appellants adopted the trade mark "Sadhoo Bedi" and the device of a Sadhoo and duly registered under No. 144760 in class 34 since 1950 and had been continuously using the same without any interruption. The appellants trade mark has become distinctive and the public associate the goods bearing the trade mark Sadhoo with the appellants only and with none else.;