Case: Associated Electronics and Electrical Industries (Bangalore) Private Limited, Bangalore Vs Star Electricals (India), Delhi. Trademark Tribunal
|For Appellant: Mr. C. V. Nagaraja Sastri, Advocate instructed by Shri V. Veeraghavan, Advocate and For Respondents: Mr. K. L. Aggarwal, Advocate
|M. R. Bhalerao, ARTM
|Trade and Merchandise Marks Act, 1958 - Sections 9, 11(a), 12(1), 12(3), 18
|1981 (1) PTC 17
|November 30, 1979
M. R. Bhalerao, ARTM
On 29th March, 1975, Tara Chand and Milap Chand trading as Star Electricals (India) 518, Bazar Taliwara, Delhi-6 (hereinafter referred to as 'the Applicants) made an application being No. 304132 in Class 11, to register a trade mark consisting of the word 'SHARP' in respect of 'installations for lighting, heating cooking and drying'. The office raised inter alia an objection that the word 'SHARP' apart from being a laudatory and descriptive word is a common surname and therefore is is not registrable except upon evidence of distinctiveness. On receipt of evidence, subject to amending the specification of goods to read as, 'Heaters, Stoves and parts thereof included in Class 11 for sale in the Union Territory of Delhi, States of Maharashtra and West Bengal'. The Application was advertised before acceptance in the Trade Marks Journal No. 657 dated 16the October, 1976 at page 663.
On 10th January, 1977 Messrs Associated Electronics and Electricals Industries (Bangalore) Private Limited, 113-A Bridge Road, Bangalore-I (hereinafter referred to as 'the Opponents') lodged a Notice of Opposition to the registration of the aforesaid trade mark on following grounds: -
That the Opponents are the proprietors of the trade mark 'SHARP' registered under number 206181, in class 9, in part A of the Register.
The the Opponents have done extensive business to the tune of several lakhs under the trade mark 'SHARP' right from January 1959 and the said trade mark has been exclusively identified with the Opponents' goods and therefore the registration of the Applicants' mark will be contrary to Section 11 of the Act.
That the trade mark applied for is a close and clourable immitation of the Opponents' trade mark.
That the Applicants have adopted the mark in question with a view to cause confusion and deception in the trade and public and that the channels of trade of the goods of the Applicants and the Opponents are the same therefore the public would think that the Applicants' goods emanate from the Opponents.
That the user claimed by the Applicants is false.
That the registration of the trade mark aplied for offends the provisions of Section 9, 11(a), 12(1) and 18(1) of the Act.
That the foregoing constitutes sufficient grounds for exercise of Registrar's discretion in favour of the opponents.
The Applicants filed their Counter-statment on 14th March, 1977. Therein, the Applicants denied all the allegation and statements contained in the Notice of the Opposition. They added that they adopted their trade mark honestly in 1969.
The evidence in support of opposition consists of one affidavit dated 8th August 1977 by M. B. Viranand. The evidence in support of application consists of affidavit dated 2nd November, 1977 by Tara Chand. The Applicants also placed reliance on the evidence filed by them at pre-advertisement stage of their application. The evidence in reply is in the form of an affidavit of M. B. Hiranand. Eventually, the matter came up before me for a hearing on 26the October, 1979. Shri C.V. Nagaraja Sastri, Advocate instructed by Shri V. Veearaghavan, Advocate appeared on behalf of the Opponent. Shri K. L. Aggarwal Advocate appeared on behalf of the Applicants.
Before going into the mertis of the case it must be mentioned that at the time of the hearing, the learned counsel for the Opponents filed certain documents one calendar of 1970, advertisement of interoom aparatus, toaster, cooking plate and copies of balance sheets for the years ended 1969-70 and 1971). When the learned counsel for the Applicants raised objection to take these documents on record, the learned counsel for the Opponents referred to the following portion of the affidavit dated 8the August 1977, by M. B. Hiranand.
"I crave leave to refer to the account books maintained by the Opponents in their regular course of business, bill books, orders placed by customers and other material documents at the hearing as they could not be conveniently filed alongwith this affidavit by way of evidence. I undertake to offer inspection to the Applicants of their authorised representative of all the documents subject to prior notice whenever called for".
The reply to the above statement, as given in the affidavit of Tara Chand reads as follows:
"That the contents of para No. 1 are matter of records and I deny all these for want of knowledge and the Opponents are put to the strict proof theof."
As earlier stated, the Opponents had already filed an affidavit dated 8the August, 1977 by M. B. Hiranand as evidence in support of opposition. The documents filed at the hearing are merely advertisment cutting copies of...
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