S. Usha, Technical Member - (1.) THE application has been filed for rectification of the registered trade mark '1 2 3 4' registered under No. 906318 in class 03 by expunging the entry made in the Register of Trade Marks.
(2.) The applicant is claimed to the registered proprietor of the trade mark No. 895629 in class 03 for the trade mark '1 2 3 4' in respect of agarbathies (incense sticks) and the same is existing on the Register. The applicant, a proprietary concern under the name Shakunthala Agarbathi company started the business of manufacturing and selling agarbathies, incense sticks and dhoop sticks and had adopted the trade mark '1 2 3 4' in July, 1986. Ever since 1986 the applicant has been continuously using the trade mark without any interruption over twenty years. The proprietary concern was converted into a partnership firm in the year 2000 under the name Shakunthala Agarbathi Company. It is stated that the applicant's mark has acquired distinctiveness as a result of its unique and invented nature. As a result of uninterrupted continuous use for a period of 20 years, the trade mark has acquired a secondary meaning to denote the goods emanate from the applicant only and from none else. The total sales turnover of the goods runs to several crores of rupees since the year 1999-2006. The applicant has spent huge amounts for promotion of the sales of goods by advertisement in various media. The applicant is the proprietor of the artistic work label and the same is registered under the Copyright Act, 1957. The use of the mark by any person would definitely lead to confusion as the goods is of such a nature which is being purchased by any person both literate and illiterate.
(3.) IT is averred that the applicant being the original adopter, prior user and proprietor of the trade mark '1 2 3 4 ' is entitled to the exclusive use of the trade mark. During August, 2006, the applicant came across several infringers and had issued legal notices and had subsequently initiated legal proceedings. The applicant had also issued caution notices in various leading newspapers. The applicant's proprietary right was being affected by the impugned trade mark on the Register. The applicant had made a search in the Trade Marks Registry to verify if any of the infringers had filed an application for registration and found that the first respondent had made an application and was registered which is the impugned registered trade mark. The first respondent had also applied for registration of the word per se 'Temple 1 2 3 4" under No. 852351 and the application number was given in the impugned trade mark carton which shows the malafide intention of the first respondent.;