Case: Banarsi Dass and Brothers, Delhi Vs Ellora Industries, Delhi. Trademark Tribunal

JudgesM. R. Bhalerao, DRTM
IssueTrade and Merchandise Marks Act, 1958 - Sections 9(1), 11(a), 11(e), 12(1), 18(4)
Citation1982 (2) PTC 373 (Reg)
Judgement DateMarch 16, 1982
CourtTrademark Tribunal

Judgment:

M. R. Bhalerao, DRTM.

On 20th April, 1965, Ved Parkash and Banarsi Dass, trading as Ellora Industries, No. 3792, Magazine Street, Churiwalan, Chawri Bazar, Delhi-6 (hereinafter referred to as "the Applicants") made an application, being No. 228445, in Class 14, in register a trade mark consisting of a label containing the word 'Gargon', in respect of 'Time pieces, clocks and parts thereof'. In due course, the application was advertised in the Trade Marks Journal No. 428 dated 1.4.1967 at page 19/20.

On 28th July, 1967, Banarsi Dass & Brothers, Katra Subhash, Chandni Chowk, Delhi (hereinafter referred to as "the Opponents") lodged a Notice of Opposition, under Section 21(1), to the registration of the aforesaid trade mark on the following grounds:-

  1. That the Opponents are the proprietors of Registered trade mark number 175751 consisting of the word 'ELORA' in respect of "watches, time pieces, clocks and parts thereof in Class 14".

  2. That in Suit No. 3/1965 filed by the Opponents against the Applicants the Additional District Judge has restrained the Applicants from using the trading style "ELLORA INDUSTRIES".

  3. That the mark applied for 'Gargon' is a slight variation of the 'GURGAON' which is a geographical name and hence it is not registrable under Section 9(d) of the Act.

  4. That the Applicants want to bring on the Register of Trade Marks, the trading style "ELLORA INDUSTRIES" which offends against Sections 11(a) and 11(e) of the Act and that by deliberately adopting the trading style "ELLORA INDUSTRIES" the Applicants attempt to pass off their goods as the goods of the Opponents.

  5. That the mark applied for offends against Section 12(1) of the Act.

  6. That the adoption of the trade mark "Gargon" and the trading style "ELLORA INDUSTRIES" is dishonest.

  7. That for the sake of purity of the Register, the Registrar's discretion be exercised in favour of the Opponents.

In their Counterstatement, the Applicants have stated that the Applicants have filed an appeal being R.F.A. 150 of 1967 in the Delhi High Court against the order passed by the Additional District Judge. Rest of the Counterstatement is one of denial of what is contained in the Notice of Opposition.

The evidence in support of opposition consists of four affidavits of S/Shri B.K. Mohindra, Prem Parkash, Girdhari Lal and Banarsi Dass Goela. The Applicants did not file evidence in support of application. Eventually, the matter was posted for a final hearing on 17th...

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