S. Usha, Vice -Chairman - (1.) THE instant appeal arises out of the order dated 13.12.2007 passed by the Deputy Registrar of Trade Marks allowing the opposition No. MAS -163030 and refusing registration of the trade mark under application No. 1013028 in class 5 under the provisions of the Trade Marks Act, 1999 (hereinafter referred to as the Act).
(2.) THE appellant herein filed an application on 31.05.2001 for registration of the trade mark "OLAPIN" (word per se) in class 5 in respect of pharmaceutical, veterinary and sanitary substances, infants and invalids foods, plasters, materials for bandaging, materials for stopping teeth, dental wax, disinfectants, preparation for killing weeds and destroying vermin all being goods included in class 5, claiming user as proposed to be used. The trade mark was ordered to be advertised before acceptance in the Trade Marks Journal No. Mega 3 dated 14.10.2003 at page No. 623. The respondent No. 1 herein filed their notice of opposition on the grounds that they are engaged in manufacturing, marketing, promoting and selling various pharmaceutical products. They have coined the trade mark OLAPIN in the year 2000 and have filed an application for registration under No. 1078878 in class 5 on 06.02.2002 claiming user since December, 2000. The appellant's trade mark is only a proposed to be used mark and refusal to register the trade mark would not prejudice their rights. The impugned trade mark is phonetically, visually and structurally identical to the mark of respondent No. 1. The registration of the trade mark would be in contravention of the provisions of Sections 9, 11, and 12 of the Act.
(3.) THE appellant herein filed their counter statement denying all the material averments made in the notice of opposition. They further stated that the trade mark OLAPIN was invented and honestly adopted. They further stated that they had not copied the respondent's mark and also stated that the registration of the trade mark would not be in contravention of the provisions of the Act.;