S. Usha, Member (T) - (1.) THE appeal is arising out of the order dated 18th June, 2002 passed by the Deputy Registrar of Trade Marks disallowing the opposition No. DEL/T-1291/54058 and allowing the application No. 519261B in class 25 to proceed for registration subject to the condition that the applicants shall substitute the words "NICE RUBBER INDUSTRIES" in place of the word NICE appearing on the mark applied for under the provision of the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as the Act).
(2.) The respondent No. 1 herein filed an application under No. 519261B in class 25 on 1st November, 1989 for registration of a trade mark. N.R. in the form of a logo alongwith the word NICE in respect of footwears claiming user since 11th July, 1988. The trade mark was accepted for registration with the condition of disclaimer of the word NICE and associating the same with the registered trade mark No. 519251. The said trade mark was advertised in the Trade Marks Journal No. 1202 dated 1st July, 1999 at page 839. The appellant herein filed their notice of apposition opposing the registration on the ground that the registration would be in contravention of the provisions of the Act. The respondent No. 1 filed the counter statement denying all the material averments made in the notice of opposition. On completion of the formal procedure, the Deputy Registrar the respondent No. 2 herein, passed the impugned order. The respondent No. 2 herein had observed that the respondent No. 1's trade mark consisted of a logo depicting the letters N.R. in a very special and particular manner along with the word NICE. As the respondent No. 1 was the registered proprietor of the logo they had exclusive right to use the said logo as the trade mark. As the respondent No. 1's trading style was NICE RUBBER INDUSTRIES, their adoption of the trade mark "NICE" was bonafide. The respondent No. 1, during the course of the argument before respondent No. 2 had submitted that they would amend their trade mark by substituting their trading style "NICE RUBBER INDUSTRIES" in the place of their trade mark "NICE" and the same was accepted by the respondent No. 2 as the identity of the mark as a whole is not altered. The amended trade mark as a whole is different from the appellants trade mark and also the respondent No. 1's trade mark is distinctive in terms of Section 9 of the Act.
(3.) AGGRIEVED by the said order the appellant herein filed the appeal before the Hon'ble High Court of Delhi in CM (M) No. 483 of 2002 and the same was transferred to this Appellate Board by virtue of the provisions of Section 100 of the Trade Marks Act, 1999 and this Appellate Board re-numbered the same as TA/193/2003/TM/DEL.;