S.Usha, J. - (1.) APPLICATION for removal of the trade mark "Garden" under No 416629 in Class 23 registered under the provisions of the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as the Act). The said application for removal of trade mark was filed before the Hon'ble High Court of Delhi in C.O. No. 30 of 1995 and transferred to this Appellate Board as per the provisions of Section 100 of the Trade Marks Act, 1999 and re -numbered as TRA/01/2007/TM/DEL.
(2.) THE applicants are companies incorporated under the Indian Companies Act, 1956. The Applicant No. 1 (formerly known as Garden Cotton and Yarns Ltd.) is carrying on business of manufacturing and selling inter alia of textile fabrics, yarns and readymade garments and is the sister concern of the Applicant No. 2. The Applicant No. 1 in the licensed user of the trade mark "Garden" which is the exclusive property of the Applicant No. 2. The Applicant No. 2 is carrying on business of manufacturing and marketing textile goods, yarns, clothing and wearing apparels, raw fabrics, textile materials, wool and thread under the trade mark "Garden". The Applicant No. 2 had adopted and started using the trade mark "Garden" since 1964 and continues to use the same extensively without any interruption till date.
(3.) THE Respondent No. 1 had adopted an identical mark and had registered the said mark Garden under No. 416629 in Class 23 in respect of cashmilon yarn, acrylic yarn and knitting wool.;