Case: Alfred Teves Gmbh, Frankfurt Vs Electric Transformer and Equipment Co. Ltd. Hyderabad. Trademark Tribunal
| Judges | C. S. Rao, DRTM |
| Issue | Trade and Merchandise Marks Act, 1958 - Sections 9, 11(a), 12(1), 12(3), 18(1), 18(4) |
| Citation | 1982 (2) PTC 119 |
| Judgement Date | December 29, 1981 |
| Court | Trademark Tribunal |
Judgment:
C. S. Rao, DRTM
As regards objection u/s 11(a), it is held that in view of voluminous evidence filed by the Opponents which cannot be assailed from any point of view and that having clearly established vested use and reputation of the Opponents `Ate' mark, the Applicants' mark would be likely to deceive and cause confusion within the meaning of section 11(a) of the Act.
Keeping in view the conduct of the Applicants which appears far from honest they are not entitled to any claim for a concurrent registration of their mark u/s 12(3) of the Act. In the circumstances, the applicants cannot claim proprietorship of the mark u/s 18(1) of the Act and thus the findings under sections 9, 11(a), 12(1), 12(3) and 18(1) of the Act having been given against the Applicants there is no need to further exercise discretion also towards the refusal of the Applicants' mark. In the result, the Opposition is allowed with costs.
Mr. Mohan Dewan, Advocate for the Opponents.
Mr. R. Narayan, Advocate for the Applicants.
On 17th November, 1973, an application was filed, being Application No. 292180 by Electric Transformer and Equipment Company Ltd., B/29-30 Industrial Estate, Sanatnagar, Hyderabad-500018, India (hereinafter referred to as the Applicants) for registration of a trade mark in Part A of the Register in respect of Electrical apparatus and instruments, included in class 9 and Applicants claimed proprietorship to the mark on the basis of user since February, 1962. The mark as depicted on a label consists of a big latter A containing within letters ETE placed beneath the horizontal stroke appearing at the midst of the said letter `A'. On some objections having been raised against the mark by Trade Marks Registry, Applicants limited their goods to Electric Transformers and electronic magnetic apparatus and instruments, all being goods included in Class 9 and agreed to the disclaimer of letter `A' in the mark and they further filed evidence in support of their user claimed under application whereupon the mark was ordered to be advertised as accepted and it was accordingly advertised in Trade Marks Journal issue No. 681 dated 16th October, 1977 at page 457. Since the date of user of the mark was not mentioned in the said advertisement, there was an errata advertised in Trade Marks Journal No. 688 dated Ist February, 1978.
On 19th December, 1977, Alfred Teves GmbH, a company organised under the laws of West Germany, of Rebstocker Str. 41-53 Frankfurt/Main. West Germany (hereinafter referred to as Opponents) filed a notice of opposition, objecting to the registration of Applicants' mark contending mainly, inter alia (1) that the Opponents are Registered Proprietors of a trade mark `Ate' in India, registered in different classes in respect of varieties of goods included under Classes 6,7,8,9, 11 and 12 and the said trade mark `Ate' is the house mark of Opponents, coined from the trading style of Opponents Viz., Alfred Teves GmbH, (2) that Opponents have been continuously using their mark `Ate' throughout the world, including India. For the last over several years and as a result thereof as well as the intrinsic good quality of the products of Opponents, their Ate mark became popular in India, (3) that the Applicants' mark is deceptively similar to Opponents' ATE mark whether the Applicants' mark is taken as AETE or ETE, (4) that the goods of the Applicants are covered by the registration obtained by Opponents for Ate mark in class 9 under registration No. 242309, (5) that on account of the long use and wide reputation of Opponents' mark the use of Applicant's mark would be likely to deceive or cause confusion within the meaning of Section 11(a) and that Applicants cannot claim proprietorship to the impugned mark under Section 18 of the Act and (6) that in all the foregoing premises, applicants' mark shall be refused registration under Sections 9, 12(1), 11(a) and 18(4) of the Act.
Applicants filed a counterstatement denying all the material averments in the notice of opposition and totally denied conflict between rival marks. In any event, they claimed registration on the basis of their factual user of impugned marks.
The Opponents filed a joint affidavit of Heinrich Sohaab and Ulrich...
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