Rectification No. Mas-55887 and Registered Trade Mark No. Mas. 454585. Case: Ashika Incense Inc. Vs N.G. Subbaraya Shetty and Sons. Trademark Tribunal
| Case Number | Rectification No. Mas-55887 and Registered Trade Mark No. Mas. 454585 |
| Counsel | For Appellant: Mr. V. Veeraraghavan, Advocate and For Respondents: Mr. Ashok Kumar J. Daga, Advocate |
| Judges | N. D. Kasturi (DRTM) |
| Issue | Trade Marks Act, 1999 - Section 57 |
| Citation | 2007 (35) PTC 806 (Reg) |
| Judgement Date | September 05, 2007 |
| Court | Trademark Tribunal |
Judgment:
N. D. Kasturi (DRTM)
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Proceedings herein relate to rectification of registered Trade Mark No. 454585 in Class-3 which stands registered as from 26.5.1986 in the name of Mr. N.G. Subbaraya Shetty trading as M/s N.G. Subbaraya Shetty & Sons, 1/1, 1st Cross, Shankarapuram, Bangalore - 560 004 (hereinafter referred to as Regd. Proprietor). The above-mentioned trade mark consisting of the word "EENADU" has been registered n respect of "Incense including agarbathies and dhoop" on the basis of proprietorship claimed by the registered proprietor through a proposed user.
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On 9th May, 2000, Mr. T.G. Venugopal, trading as M/s Ashika Incense Inc., No. 3911, 14th Cross, K.R. Road 9th Main Corner, Banashankari 2nd Stage, Bangalore - 560 070 (hereinafter referred to as "Applicants for Rectification") filed and application for rectification seeking expunction of the above mentioned registered Trade Mark No. 454585. In the application for rectification on form TM-26 and in the statement of case filed in support thereof, Applications contended mainly that Applicants are carrying on business, inter alia, of manufacture and sale of incense sticks for the past several years. During the course of his business, the Applicants for Rectification have honestly conceived and adopted the trade mark "EENADU" on 1.9.1993 and ever since the said date, the Applicants continuously and extensively used the said trade mark without any intention whatsoever. The Applicants have also been exporting Agarbathies under the said trade mark "EENADU" to USA and Sri Lanka. The Applicants for rectification has done extensive business and turnover runs to several crores of Rupees and by virtue of the same, the said trade mark has become well known and in distinctive besides capable of distinguishing the products of the Applicant with none else.
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In order to safeguard his rights over the said trade mark EENADU, the Applicants for Rectification has applied for registration of this said trade mark under No. 619177 in Class-3 and the same has been advertised in the Trade Marks Journal No. 1234 dated 1.11.2000 and it is due for registration.
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The Applicants for rectification has also registered the brand name EENADU under the Copyright Act, 1957 under No. A-53813/97. The Registered Proprietor has applied for registration of the trade mark EENADU (word per se) on 26.5.1986 as a proposed mark. The said trade mark was advertised in the Trade Marks Journal No. 944 dated 1.10.1998 at page No. 768. Though the Registered Proprietors have obtained the registration of the mark EENADU, they have not renewed the said trade mark in time. The first and second renewal of the said registration was done on 16.3.2000. The first renewal which was due on 26.5.1993 was not done within time and the same was renewed on 16.3.2000 after a lapse of nearly seven years along with the renewal. The Ld. Counsel for the Applicants for Rectification submits that the registered proprietors never manufactured nor sold the Agarbathies bearing the trade mark EENADU. The impugned registered trade mark has been cited as a conflicting trade mark and thereby applicants become aggrieved person by the presence of impugned trade mark on the Register.
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That the impugned registered trade mark was never used by the registered proprietors in respect of their goods "Incense including Agarbathies and Dhoops" in Class-3 and it was registered without bona fide intention on the part of the registered proprietor. The mark has never been used by the Registered Proprietors as the Proprietor of the said mark and the impugned mark hit by the provision of Section 47 on the ground of non-user for the period prescribed under Section 47 of the Act (Section 46 of Old Act).
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That the impugned registration also...
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