S.K.Mukherjee, J. - (1.) This appeal is directed against an order made by Bijayesh Mukherji, J., on an appeal under Section 109 of the Trade and Merchandise Marks Act, 1958, upholding an order by which the Registrar of Trade Marks refused an application by Respondent No. 3 for rectification of the Register by removal of the respondent's Trade Mark "Formica" from the Register.
(2.) The trade mark in question consists of the word "Formica". It was registered with effect from May 13, 1952 in respect of non-metallic laminated materials for use in building and construction in class 19. The registration of the mark has been renewed for a period of 15 years from 13th May, 1959. The grounds for rectification as appears from the application and the statement of case presented before the Registrar were that (i) the registration of the said trade mark in respect of non- metallic laminated materials for use in building and construction in class 19 is bad being contrary to the provisions of clauses (a), (b) and (c) of Section 11 of the Act. (ii) The said trade mark is inherently not adapted to distinguish the goods of the registered proprietors and therefore, the said trade mark is not distinctive even now of the goods of the registered proprietors. The said mark remains wrongly on the Register and its entry ought to be removed from the records. (iii) The registration of the said trade mark is bad under the provisions of clauses (b) and (c) of Section 32 of the Act. Though a period of seven years has elapsed from the date of registration yet the same cannot be taken as valid in all respects inasmuch as the word "Formica" is not at all registrable as a trade mark being merely descriptive of the goods. Secondly the said word is deceptive as the goods in respect of which it is applied are not mica or any ingredient of mica.
(3.) The registered proprietors filed a counterstatement denying the allegations contained in the application for rectification.;