Ramji Lal,ARTM - (1.) ON 31st October, 1990 M/s Rudi Roller Flour Mills (P) Ltd., Oden Padaria Road, Mainpuri, (U.P.) filed an application for registration of a trade mark SHIV SHAKTI with the device of Trishool and Damroo in class 30 in respect of atta, maida, suzi. The application was numbered as TM-1 application No. 539247 in class 30 wherein the user of the impugned mark was claimed since 6th March, 1990. In due course the application was allowed to be advertised before acceptance and accordingly it was advertised in the Trade Marks Journal No. 1115 dated 16.11.1995 at its page 2412.
(2.) On 20th December, 1995 Kewal Krishnan Kumar having his address at 112-A, Samay Pur, Delhi-110042 (hereinafter referred to as the opponent) gave a notice of his intention to oppose the registration of the trade mark advertised as aforesaid on the following grounds :- (1) That the opponent is well known and well established in the business of manufacturing and marketing inter alia of flour, gram flour, maida, sooji, bran, pulses, rice cereals for the past several years. (2) That the opponent is the true owner and the lawful proprietor of the trade mark SHAKTI BHOG in relation to the aforesaid products. (3) That the opponent is the registered proprietor of the mark SHAKTI BHOG under registered trade mark No. 391844 in class 30. The said registered trade mark has been renewed and the same is still valid and subsisting on the register. (4) That the said trade mark SHAKTI BHOG has been used continuously and extensively since the year 1975 in relation to the aforementioned goods. The opponent further submitted that he has advertised his mark through various Medias of advertisement and publicity such as radio, television, newspaper etc. (5) The opponent submitted that he has spent substantial money on popularising the said trade mark SHAKTI BHOG and in fact SHAKTI BHOG has become a household name for the consumers. (6) The trade and public have come to associate and identify the above mentioned goods with the trade mark SHAKTI BHOG of the opponent only and none else. (7) The opponent stated that he has acquired statutory rights to the exclusive use of the trade mark SHAKTI BHOG in relation to the aforementioned goods. (8) The opponent further submitted that the mark applied for is identical and/or deceptively similar to his aforesaid registered trade mark SHAKTI BHOG. The leading feature of the mark applied for is the word SHAKTI. The mark applied for having the word SHAKTI is confusingly similar to his said trade mark. (9) The goods for which the applicants are seeking registration are the same and are of the same description, therefore, the mark applied for is hit under Section 12(1) of the Act. (10) The opponent submitted that inevitable confusion is likely to result from the use of the impugned mark during the course of trade. The consumer will assume that the goods covered under the impugned mark are coming from the opponent. (11) The opponent further submitted that the mark applied for is neither adapted to distinguish nor it is capable of distinguishing the goods of the applicants during the course of trade. (12) The adoption of the mark applied for by the applicants is absolutely dishonest and mala-fide. As such the applicants are not and cannot claim to be the proprietor of the impugned mark. Therefore, its registration in the name of the applicants will be contrary to the provisions of Section 18(1) of the Act. (13) The mark applied for by the applicants is even otherwise disentitled to protection in a Court of Law and as such it is prohibited for registration under Section 11(e) of the Act. Finally the opponent submitted that the registration of the impugned mark is prohibited under the provisions of sections 9, 11(a), 11(e), 12(1), 12(3), 18(1) and 18(4) of the Trade and Merchandise Marks Act, 1958. The opponent submitted that in view of the grounds taken by him in the aforementioned paragraphs the impugned application be refused registration and his notice of opposition be allowed with cost.
(3.) ON 2nd April, 1998 the applicants filed their counter statement in the matter generally denying all the material allegations as contained the in notice of opposition. In support of their application the applicants submitted that the trade mark as applied for by them under the impugned application consisting of the words SHIV SHAKTI with the device of Trishool and device of Damroo refer to articles used by the Lord Shiva which also indicate the powers of Lord Shiva. The applicants submitted that the applicants started using the same in March, 1990 and the same is being used since then openly, continuously, extensively without any interruption from any corner whatsoever. The applicants further submitted that the mark applied for by them has no relevance with the words SHAKTI BHOG of the opponents.;