Z.S. Negi, Chairman - (1.) THIS is an appeal under Section 91 of the Trade Marks Act, 1999 (hereinafter referred to as the Act) directed against the order dated 28.07.2007 passed by the Assistant Registrar of Trade Marks, Chennai whereby he has refused the application No. 1380715 for registration of trade mark 'ULTRA PERFECT+'.
(2.) The appellant, a company incorporated the Companies Act, 1956, applied on 17.08.2005 for registration of trade mark 'ULTRA PERFECT+' in class 7 and the application was set down for a personal hearing on 28.06.2007. On filing of Form TM-15, the grounds of refusal were received by the appellant on 30.07.2007. The application was refused under sections 9 and 11 of the Act. Aggrieved by the impugned order of Assistant Registrar of trade Marks, the appellant has preferred the present appeal on the grounds that the trade mark applied for registration has no reference to the character of the services provided by the appellant and the trade mark has been used extensively by the appellants and has gained enormous amount of goodwill. The appellant, in support of its claim, has filed copies of the catalogues as annexure to the appeal. Further, the appellant, by filing copies of advertisements, has claimed that the trade mark applied for has also been advertised in newspapers in India. The appellant has established a place of business in India and has started actively using the trademark since the date of filing the application. With regard to the rejection under Section 11 of the Act, the appellant has stated that the goods of the marks cited in the examination report are in respect of 'Machines and apparatus for use in the application of chemical coatings, etc., high-efficiency dryers, water purifier and blender', which are entirely different from the appellant's goods i.e., wet grinders, coconut scraper, atta kneader, food processors and mixer grinders. The appellant has prayed that the impugned order of the Assistant Registrar of Trade Marks may be set aside and the application should be allowed to proceed to publication in the Trade Marks Journal.
(3.) A notice dated 20.12.2007 along with copy of appeal was issued to the respondent for filing a statement, if it wished to contest the appeal, within two months but no statement has been filed by the respondent. The appeal came up before us for hearing when Shri A. Vijay Anand, Advocate appearing on behalf of the appellant submitted that the appellant, an Indian company established in the year 1981, is engaged in the business of manufacturing and marketing of wet grinders, coconut scrapper, atta kneader and other home appliances. The trade mark ULTRA PERFECT + has been used in India by the appellant since February, 2006 in respect of the goods of its manufacture and merchandise and the sales turn over for the year ending 31.3.2006, 31.3.2007 and 1.4.2007 to 31.7.2007 are Rs. 31.42 lacs, Rs. 241.14 lacs and Rs. 128.20 lacs, respectively and the learned Counsel took us through copies of a few invoices filed by the appellant. Learned Counsel further submitted that the appellant has spent more than Rs. 53 lacs towards advertisements for promoting its goods under the aforesaid trade mark; a few copies of such advertisements were filed along with the appeal. He stressfully submitted that by reason of use and by reason of quality of the goods, in respect of which registration of trade mark was sought for, the trade mark since 2006 is identified with the appellant alone and the trade mark has acquired distinctiveness entitling the same to be registered.;