CIZER TIME INDUSTRIES Vs. BHARAT HIRALAL SUTHAR & ANOTHER

JUDGEMENT

(1.) THE applicant are seeking the removal of the registered trade mark LIZER (label) of the respondent under no.1347998 in Class 14 in respect of watches, horological and chronological instruments. The grounds for removal of the impugned mark are summarized below: -

(2.) IN the detailed Statement of Case in support of the cancellation petition, the applicants have canvassed the following grounds in support of their case.: -

(3.) THE respondent's defence is that the impugned mark was registered by following the due process of law. The competing marks are different and so neither Section 9(1)(a) or (9)2(a) are attracted. The respondent mark consists of "LIZER WITH THE DEVICE OF L & Z" which is totally different from the applicant's mark. The respondent also have challenged the sales figures furnished by the applicant. The respondent state that the alleged cause of action (confusion) a rose after two years use by the respondent and no legal injury is sustained by the applicant. The first two letters "LI" of the impugned mark means traditional measuring unit used in China and is used as a proverb to indicate great distance or the exotic and therefore the adoption of the impugned mark is honest and bonafde. The respondent state that their mark has acquired its own identity, reputation and goodwill and is distinguishable from the applicant's mark CIZER in toto. He further asserts that due to some personal reasons, the counsel for the respondent failed to file the reply to the Notice of Motion and Written Statement in the Civil Suit and they have now submitted an affidavit in this regard to the Court. There is nothing on record to show that the applicant herein represented through one of the partners Shri Suresh Kumar Dalichand Seth is an active partner of the said firm. The respondent state that both the marks have no specific meaning and therefore the impugned registration is not contrary to Section 18(1) of the Act as alleged. Even Section 11(3)(a) would be inapplicable as the applicant has not taken any action for over two years since the respondents started using the said impugned trade mark. The applicant have also not filed the assignment deed in favour of Cizer Time Industries. In brief, no case for the removal of the impugned mark has been made out by the applicant.