Mohideen Basha, J. - (1.) ON the 25th July, 1974, Mrs. Raju B. Ahuja, Mrs. Meena V. Ahuja, Mrs. Kanta S. Ahuja and Gopal K. Ahuja, trading as Ahuja Enterprises, c/o. Ahuja Bros., 4th Road, Hari Market, Khar, Bombay 52 (hereinafter referred to as "the Applicants") made an application, being Application No. 297926, to register a trade mark consisting of the words "OLD TRAVELLER" in class 33 in respect of a specification of goods which after an amendment reads as "Wines, spirits (beverages) and liquors (spirituous) and whisky". It was stated in the application that the mark was proposed to be used. After preliminary scrutiny, objection was taken in the Trade Marks Registry to the application on the ground that the mark conflicted with certain trade marks already occurring in its records. The applicants made their submissions and in due course the application was advertised before acceptance in Trade Marks Journal No. 626 dated 1st July, 1979 at page 374.
(2.) On 25th September, 1975, Shaw Wallace & Company, Limited, also trading as Shaw Wallace Bengal Distillaries and The Andhra Winery and Distillery, 4, Bankshall Street, Calcutta-1 (hereinafter referred to as "the Opponents") entered an opposition to the aforesaid application. The grounds of opposition are as follows: That the opponents are the proprietors of a trade mark registered under No. 275688 B consisting of a label containing the words "OLD TAVERN" as its essential feature in Class 33 in respect of "liquors". In view of the use and registration of the said trade mark, the registration of the mark applied for would be contrary to Sections 12(1) and Section 11(a) of the Act. The Applicants are not the proprietors of the mark and hence are not qualified to apply under Section 18(1) of the Act and that the mark applied for is not adapted to distinguish the applicants' goods and is not registerable under Section 9 of the Act. The Applicants filed a counterstatement on 29th December, 1975 in which they averred that they honestly adopted the mark and that their mark is not deceptively similar to the opponents aforesaid trade mark. They stated that by virtue of honest adoption they are the proprietors of the mark applied for. The rest of the counterstatement is one of denial.
(3.) THE Opponents filed evidence in support of the opposition by way of an affidavit of Kewal Krishan Sareen dated 1st August, 1977 with certain exhibits annexed thereto, supported by an affidavit of Homi Jail Balsasa dated 2nd August, 1977 and also an affidavit of Akhter Hussain dated 2nd August, 1977. THE Applicants did not file evidence in support of their application.;