Case: Ambalal Sarabhai Enterprises Limited, Bombay Vs Tata Oil Mills Company Limited, Bombay. Trademark Tribunal
| Counsel | For Appellant: Mr. S.M. Dongre, Legal Executive and For Respondents: Mr. I.N. Kayser, Advocate of M/s. Kayser & Company |
| Judges | T. R. Subramanian, DRTM |
| Issue | Trade and Merchandise Marks Act, 1958 - Sections 9, 11, 12(1), 18(1) |
| Citation | 1988 (8) PTC 73 (Reg) |
| Judgement Date | January 06, 1988 |
| Court | Trademark Tribunal |
Judgment:
T. R. Subramanian, DRTM
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On 30th September, 1987, M/s Tata Oil Mills Co. Limited (hereinafter referred to as the 'Applicants') having place of business at 24, Homi Mody Street, Bombay 400 023 filed an application being Application No. 381514 for registration of the word mark 'PROMIX' in class 30 in respect of vegetable protein, flour concentrate, protein foods, health foods etc. and the mark was proposed to be used in respect of the above goods. The application was advertised before acceptance under Section 20(1) of Trade and Merchandise Marks Act, 1958 n the Trade Mark Journal Nol. 855 dated 16-1-1985 at page 691.
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On 18th March, 1985, M/s. Ambalal Sarabhai Enterprises Limited (hereinafter referred to as the 'Opponents') having place of business at Wadi Wadi, Baroda filed a notice of opposition to the above application interalia on the following grounds:
That the Opponents are the proprietors of the Trade Mark 'PROMOLAN' under No. 390913 in class 5 in respect of pharmaceutical preparations and chemical preparations for medicines under No. 231528 in class 30 in respect of flour and preparations made from cereals included in class 30 and under No. 231503 in respect of Syrup and other preparations for making beverages.
That the mark PROMOLAN has been extensively used by them and their predecessors in business and title for the past many years in respect of high protein food product and the same has acquired valuable reputation and goodwill all over India.
That the applicants' mark 'PROMIX' is deceptively similar to the opponents mark 'PROMOLAN'.
That the registration of the mark applied for is contrary to the Sections 11 & 12(1) of the Act.
That the applicants are not and cannot be considered as proprietors of the trade mark applied for, within the meaning of Section 18(1) of the Act.
That the mark applied for does not qualify for registration under Section 9 of the Act.
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The Applicants filed their counterstatement on 29th May, 1985 denying all the above allegation and submitted that the applicants are the proprietors of the mark and have coined the mark. They also submitted that they are the proprietors of a series of trade marks having PRO as the leading or distinguishing feature such as PROTIMITE under No. 254932 in Class 30, PRONIT under No. 248796 in Class 30, PROMA under No. 254163 in class 5 etc. The applicants also submitted a list of trade marks existing on the Register of Trade Marks in the names of various other...
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