P.K. Majumdar, J. - (1.) This is an application by the petitioner, India's Hobby Centre Pvt. Ltd. under the Trade & Merchandise Marks Act, 1958 (hereinafter referred to as the Act) for cancellation of and/or expunging the Trade Mark bearing No. 363531 -B in Class 30 and registered in the name of KWALITY ICE CREAMS LTD. the respondent from the Register of Trade Marks. The grounds for expunging the registered Trade Mark in favour of the respondent from the Register are, inter alia, as follows: a) that the registration was obtained by fraud, b) that the trade mark was registered in contravention of the provisions of Sec. 11 or offend against the provisions of that Sec. on the date of commencement of the proceedings, c) that the trade mark was not, at the commencement proceedings, distinctive of the goods of the registered proprietor. d) that the trade mark was registered without any bonafide intention to use it. e) that the entry in the Register was made without sufficient cause, f) that the entry relating to the Registered Trade Mark is wrongly remaining on the Register, g) that the Trade Mark Registered in the name of the respondent Kwality Ice Creams Ltd. is disentitled to protection in the Court, h) that the balance of convenience is in favour of the expunging the trade mark from the Register.
(2.) The petitioner, India's Hobby Centre Pvt. Ltd. on the aforesaid grounds prays for expunging the trade mark bearing No. 36 35 31 -B from the Register of Trade Marks by virtue of Ss. 32, 46 and 56 of the Act.
(3.) This application was made before the Registrar of Trade Marks, and the said application had been made by Depenning & Depenning acting as agent for the applicant, the India's Hobby Centre Pvt. Ltd.;