D.K. Sen, J. - (1.) The Courts The trade mark of the Metal Box of India Ltd., the respondent No. 1, consists of two English alphabets MB joined together. The right vertical line of the letter 'M' and the left vertical line of the letter 'B' are common. This Trade Mark was registered on the 2nd September 1983 by he respondent No. 1 in respect of tins, tin containers and other goods made out of non -precious metal including metal sealing caps of bottles and other containers in class 6 and advertised in the Trade Marks Journal dated the 1st December, 1945. Gujarat Metal Box Company a partnership firm, the petitioner, commenced business in manufacturing ad marketing of metal containers in 1960. They adopted a trade mark consisting of a design with the English letters "G.M.B."
(2.) Sometime in 1975, the respondent No. 1, filed a suit being Suit No. 539 in this Court claiming, inter alia, permanent injunction restraining the petitioner from using the latter's trade mark. An interim order has been passed in the said suit restraining the petitioner from using its said trade mark.
(3.) The present application is made on a notice dated the 15th January 1982 and the petitioner prays from the following order: (a) A declaration that the entry in respect of the Registered Trade Mark No. 85504 in Clause 6 of which the respondent No. 1 is the proprietor is bad in law and liable to be removed, expunged and/or cancelled from the Register. (b) The Register be rectified by removing the name of the respondent No. 1 therefrom and by deleting or expunging the registration of the said trade mark of the respondent No. 1.;