S. Usha, Technical Member - (1.) THE two rectification applications have been filed for removal of the trade marks "Sagar Group" and "Sagar Travels" under Nos. 866077 and 866078 respectively in class 16 from the Register of Trade Marks. THE applicant is carrying on business of providing travel services under the name and style "Sagar Travels". THE applicant along with the first respondent and two others formed a partnership firm under the name and style Sagar Tours and Travels to carry on the business of travel services in the year 1993. THE said partnership was unregistered. THE applicant as sole proprietor has been carrying on the business since 1994 after the first respondent left the firm. THE applicant is providing road transportation between Bangalore and districts in Kerala.
(2.) The applicant has been carrying on business in Kerala from 1993 and since 2000 in Bangalore. The applicant has been using the said trade mark for a continuous period of 14 years without any interruption. The first respondent has not been carrying on any business for the last few years. The applicant further states that no person had exclusive right to the trade mark "Sagar" word per se. The applicant has filed this application for removal of the trade mark on the grounds that the first respondent has obtained registration of the impugned trademark without any bona fide intention to use the mark in relation to the goods for which it is registered. The impugned trade mark is wrongly remaining on the register and the registration has been obtained by claiming false user and that the mark ought to be removed. The said trade mark is generic as it is being used by several traders. The impugned trade mark is not distinctive of the respondent's goods. The applicant is facing a criminal proceedings and as such is a person aggrieved. The matter was heard on February 11, 2008, at Chennai. Learned Counsel Shri Sivaraman Vaidyanathan appeared on behalf of the applicant and even after service by way of substituted service on the first respondent, none appeared on behalf of the respondents. Common arguments were advanced as both the parties in the two applications are one and the same.
(3.) LEARNED Counsel for the applicant contended that the two applications were made in the year 1999 claiming user since the year 1996 in class 5. The classification of goods under which the application for the mark was applied was paper and paper materials, whereas the first respondent was carrying on business of travel services which falls under the classification of services and as such the classification under which the mark was applied for itself was wrong.;