Z.S. Negi, Chairman - (1.) THE applicant has filed this application for removal of Trade Mark No. 1225874 in class 5, registered in the name of the respondent, from the register of trade marks or rectification of the register under Section 47/57/125 of the Trade Marks Act, 1999 (hereinafter referred to as the Act).
(2.) It is stated that the applicant carry on an established and reputed business, on all India basis, in manufacture and sale of pharmaceutical and medicinal preparations for human use. The applicant claims to be using regularly in the course of trading in connection with the above mentioned goods a distinctive trade mark 'AMBROLITE' since June 1999. The said trade mark is registered under No. 837932 as of 22.1.1999 in class 5 and the said registration is subsisting and stand renewed for ten years from 22.1.1999. The applicant claims that its trade mark is registered much earlier than the impugned trade mark 'AMBROLITE' of the respondent. Apart from the above mentioned trade mark, the applicant claims to be the proprietor of the trade marks containing or consisting of the word AMBROLITE with varying suffixes, such as, AMBROLITE - ST, AMBROLITE 2S, AMBROLITE - S, AMBROLITE - XT, AMBROLITE ST, AMBROLITE - 2ST and AMBROLITE - D and applications for registration of these marks are pending in the Trade Marks Registry. The applicant is the proprietor of yet another trade mark AMBROLYTE under application No. 733851 under class 5 which has a slight variation in the spelling. Applicant's claim is that it came to their notice recently that the respondent had obtained registration of an identical mark AMBROLITE under No. 1225874 for various goods including pharmaceutical preparations in class 5 and their subsequent investigations revealed that the said impugned mark has not been brought into use in the market. Applicant claiming to be the person aggrieved on the grounds of respondent having obtained identical mark for similar goods and goods of allied nature, has sought removal of the impugned registration from the register of trade marks on various grounds, inter alia, that the impugned registration obtained by the respondent is identical with the prior used and registered mark of the applicant and the goods covered by the impugned mark are similar and allied in nature and the use of such mark will certainly cause confusion and deception, not only to the applicant's detriment but also to the detriment of the trade and public as well; that the impugned mark is not and never is distinctive of the goods of the respondent; that the respondent is not and never was the proprietor of the impugned mark; that the very adoption of the impugned mark is dishonest and utterly lacking in any bonafides and ought not to be allowed to continue on the register; that the impugned mark was registered without sufficient cause and is wrongly remaining on the register; that the use of the impugned mark would result in the goods of the respondent being passed off as or for the goods of the applicant and would result in the infringement of the applicant's trade mark and that the impugned mark is liable to be removed on the ground of lack of bonafide intension to use and also of non-user under Section 47 of the Act.
(3.) A copy of the application was sent to the respondent on 14.11.2006 calling upon it to file its counter-statement in case it wishes to contest the application. Though the respondent is in receipt of the application it has not filed any counter-statement. The matter was posted for hearing on 5.2.2009 and hearing notices dated 15.1.2009 were sent to the parties and the said notices have been received by both the parties but the respondent remained unrepresented on the date of hearing.;