Sahidullah Munshi, J. - (1.) This GA No. 531 of 2005 is at the instance of defendant nos. 1, 2 and 3 praying for stay of all further proceedings in Civil Suit No. 48 of 2000 till final disposal of the rectification and/or cancellation proceeding initiated by the defendants/petitioners against registered trade mark nos. 8982 and 473754 in class-30. In the application it has been contended by the defendants/petitioners that the plaintiffs filed three applications for registration of trade marks under trade nos. 473752, 473753 and 473754 as "proposed to be used", in respect of wide specification of goods in class30 of the fourth schedule to the Trade and Merchandise Marks Rules, 1959. It is the case of the petitioner that amongst the above mentioned three trade mark applications, the trade mark no. 473754 in class-30 escaped the notice of the defendant nos. 1,2 and 3 and the same, as a result, was registered in favour of the plaintiff no. 1. The defendant no. 3 lodged the proceedings opposed at the Trade Mark Registrar, Kolkata, being opposition no. CAL- 2861 and CAL- 2862 to the plaintiff no. 1's above referred application nos. 473752 and 473753 respectively, both in class -30 for registration of the label mark KIT KAT.
(2.) After hearing the parties, learned Registrar of Trade Marks passed a composite order in both the opposition proceedings holding that the applicant (the plaintiff no. 1) is not entitled to the registration of impugned trade mark for the specification of goods as sought for in their impugned applications, but the applications can be considered for registration excluding specification of goods, "preparations made from cereals, food staff prepared in the form of snacks". Against the said order, the plaintiff no. 1 preferred an appeal which is pending adjudication. Being aggrieved by the continuance of the entries made in the register of trade marks, the defendant nos. 1,2 and 3 filed an application for rectification on or about 1997 and under Section 46/56 of the Trade and Merchandise Marks Act, 1958 for rectification and/or cancellation in the Trade Mark Registry, Calcutta in respect of the registered trade mark no. 8982 in class-30 for trade mark to Kit Kat in respect of Coco, Chocolates, confectionery and Chocolate biscuits in the name of Rowentree & Co. Ltd., subsequently purported to have been assigned to plaintiff no. 1. The said proceeding was initiated while the defendant nos. 1, 2 and 3 came to know of the association of the registered trade mark no. 8982 in class -30 with the opposed application nos. 473752 and 473753. It has also been stated on behalf of the defendants that an application has been filed for rectification and cancellation in this Hon'ble Court being A.T.M No. 2000 under Section 45/56 of the Trade and Merchandise Marks Act, 1958 praying, inter alia, for expunging and rectification of the entries made in the register of trade marks, in respect of trade mark no. 473754 in class-30 registered in favour of the plaintiffs.
(3.) Learned Counsel appearing for the defendants submits that the said application was transferred before the Registrar of Trade Marks and the same is still pending.;