K.S. RAJA Vs. THE REGISTRAR OF TRADE MARKS, TRADE MARKS REGISTRY I.P.R. BUILDIN & OTHERS

JUDGEMENT

(1.) THIS is an application for removal of the trade mark ANIL APPALAM under No. 687449 in class 30. According to the applicant, he is the honest adopter of the mark ANIL APPALAM from the year 1993 and has been using it continuously and the use is prior to the 2nd and 3rd respondents mark. Therefore, the impugned mark must be removed. The case of the applicant:

(2.) IN the year 1993, one Mr. K.S. Raja, Mr. Pichai and Mr. Kali Muthu started the business of marketing Appalam in the name and style of Anil Appalam and Chips. Mr. Kali Muthu relinquished his partnership rights in 1994. In 1997, the other two executed a partnership deed. Afterwards, Mr. Kali Muthu and Mr. Pichai executed a partnership release deed in favour of Mr. K.S. Raja on 26/11/1997. The applicant approached an advocate for the registration of Anil Appalam trade mark. Application Nos. 687449 and 687489 were allotted by the Trade Marks Registry. One Mr. Perumal and Ms. Nagalekshmi started a similar business under the same name in Tamil Nadu and Pondicherry. In 2006, the applicant filed an Original Suit No. 134/2006 before the Principal District Court, Madurai against them. Injunction was granted. Mr. Perumal and Ms. Nagalekshmi released themselves from the partnership leaving Mr. Muthukani as the sole proprietor. Mr. Muthukani obtained the registration under the application No. 687449 filed by the applicant. The 2nd and 3rd respondents obtained a registration by using the documents which originally belonged to the applicant. Therefore, there are no bonafides in their adoption and it has to be removed.

(3.) THE respondents in their counter statement submitted that the original application was filed on 20/11/1995 and 14/07/2000. The applicant had retired from the partnership and the goodwill and business were sold to the respondents' predecessor in interest. The new partner, i.e. the respondents took initiative to get the mark registered. The applicant sold his rights as a going concern. He has filed a fresh application for registration of the same trade mark. Once the goodwill was sold, the applicant has no right in the trade mark. The rectification application must be dismissed.