M.L.JAIN,J. - (1.) This matter comes up by way of an appeal against the order of the Assistant Registrar of Trade Marks of September 15, 1970, accepting the application for rectification of a trade mark under S. 56 of the Trade and Merchandise Marks Act, 1958 (hereinafter the Act), filed on December 16, 1965, by Karan Singh of M/s. Ishwari Prasad Karan Singh against Dr. Ganga Prasad A Gupta of M/s. Ganga Prasad Gupta & Songs, both parties of Hathras.
(2.) The parties are selling an anti-malaria mixture known as SIKATRA Kl BOTAL. The applicant; for rectification claims to be B the registered proprietor of the trade marks (1) Araq Karan Prakash and Sikatra Ki Botal along with the bust portrait of Karan Singh, and (2) SIKATRA Kl BOTAL, registered respectively at No. 146942 on 1-9-1952 and No. 209326 on 1-9-1963. It was alleged that this was the trade mark which was adopted by his father in the year 1925 to denote the goods known as medicinal preparation for malaria fever and liver diseases when he was residing in his native village of Sikatra, Post Office Hasayan, District Aligarh, U.P. Later on, in the year 1937, they shifted their business to Hathras and continued to manufacture and sell the said mixture from there. The expression 'Sikatra Ki Botal' appearing on his production denotes that the medicinal preparation has been manufactured in village Sikatra or by the firm of the person residing in or connected with Sikatra. He complained that the registered proprietor Ganga Prasad Gupta, though not a resident of village Sikatra, nor in any way connected with that village, got the trade mark of SIKATRA Kl BOTAL under the heading Araq Charna Prakash registered at No. 118343 on 20-2-1950. He alleged that the trade mark registered and used by the other party was entered without sufficient cause and continues to be wrongly on the register and obviously suffers from an error inasmuch as the registration of the said trade mark was obtained by fraud, was in violation of S.11 of the Act, and contained a geographical name without having acquired any distinctiveness as required by S. 9 of the Act.
(3.) The opposite party filed on June 17, 1966, a counter-statement that, they are the proprietors of the trade mark 'Sikatra Ki Asli Bottle' which has been registered in respect of medicinal powder. Their registered No. is 118343 dated 20-2-1950, though they have been using this mark since the year 1936. This trade mark was advertised in the Trade Marks Journal dated February 1, 1949. They complained that it was the applicant who had copied and usurped their trade mark and got it fraudulently registered. The applicant had nothing to do with village Sikatra, District Aligarh. The trade I mark is not even being used honestly and cont.inuously by the applicant within the meaning of S. 12 of the Act.;