S. Usha, Member (T) - (1.) THE instant appeal has arisen out of the order of the Deputy Registrar of Trade Marks dated 24.11.1997 in opposition No. DEL-8420 against the application No. 459083 allowing the opposition and refusing the application for registration of the trade mark consisting of the label mark 'Commando XXX Rum' with device.
(2.) The appellants herein filed an application for registration of the label mark 'Commando XXX Rum' with device in respect of rum in class 33 on 25.08.1986 claiming user since December, 1977 under application No. 459083 under the provisions of the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as the Act). The said application was advertised before acceptance in the Trade Marks Journal No. 1066 dated 1.11.1993 at page 831. The first respondent herein filed their notice of opposition on form TM-5 opposing the registration on the grounds that the mark was not distinctive and so cannot be registered as per the provisions of Section 9 of the Act; that the impugned trade mark is deceptively similar to the appellant's registered trade mark and is in contravention of the provisions of Section 11(a), (b) and (e) of the Act and that the mark is not registrable under the provisions of Sections 12(1) and 18(1) of the Act.
(3.) THE appellants herein filed their counter statement denying on Form TM-6 all the material averments on the grounds that the appellants are true and lawful proprietor of the trade mark; that the trade mark Commando (word per se) is registered under No. 459094 as of 25.08.1986 in class 33 and the same is still subsisting and that the appellant's goods bearing the impugned trade mark has obtained goodwill and reputation and is registrable under Sections 9, 11(a), 11(b), 11(e), 12(1) and 18(1) of the Act.;