Case: Bhatia & Co., New Delhi Vs Mehra Sales & Service, Delhi. Trademark Tribunal
| Counsel | For Appellant: Mr. R.K. Anand and Mr. Amarjit Singh, Advocates |
| Judges | M. R. Bhalerao, DRTM |
| Issue | Trade and Merchandise Marks Act, 1958 - Sections 9, 11, 12, 18 |
| Citation | 1982 (2) PTC 383 (Reg) |
| Judgement Date | May 25, 1982 |
| Court | Trademark Tribunal |
Judgment:
M. R. Bhalerao, DRTM.
On 24th July, 1978, Ram Kumar Mehra, trading as Mehra Sales & Service, Nai Sarak, Delhi -- 110006 (hereinafter referred to as "the Applicant") made an application being No. 338846, in Class 16, to register a trade mark ''NITU' word per se), in respect of the specification of goods which on subsequent amendment reads as ''Pens for sale in the States of Punjab, Haryana, Uttar Pradesh, Rajasthan and the Union Territory of Delhi'. In due course, the application was advertised before the acceptance in the Trade Marks Journal No. 731 dated 16th November, 1979 at page 983.
On 10th March, 1980, Bhatia & Co., 2248, Chuna Mandi, Paharganj, New Delhi -- 55 (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:-
That the mark applied for is not registerable under Section 9 of the Act.
That the Opponents are the proprietors of the trade mark ''BITTOO' which was coined in 1962 and used since then in respect of ''Pens, exercise books, stationary articles and office requisites".
That the Opponents have registered their trade mark ''BITTOO' under numbers 221092-B, 238590-B, 278852-B and 291372 in Class 16.
That the mark applied for is deceptively similar to the Opponents' mark and that the Applicant's goods are same or similar as those for which Opponents hold registration.
That much reputation has accrued to the Opponent's mark due to its extensive prior use and therefore the use of the deceptively similar mark, as applied for, would be likely to deceive or cause confusion.
That the Applicant is not the proprietor of the mark.
That the registration of the mark applied for will be contrary to Sections 9, 11, 12 and 18 of the Act.
That the registration be refused in exercise of the Registrar's discretion.
In his Counterstatement, the Applicant claimed that in respect of ''pens' he used the mark ''NITU' prior to the use of the Opponents' mark ''BITTOO' for ''pens'. He also stated that his case be considered for registration under Section 12(3) of the Act. Rest of the Counterstatement is one of denial of what is contained in the Notice of the Opposition.
The evidence in support of opposition consists of one affidavit by Balbir Singh.
The evidence in support of application consists of main affidavit by Ram Kumar Mehra and three trade declarations by S/Shri Sat Pal Mehra, Dhanwant Singh Sethi and Joginder Singh Bhasin.
The Opponents did not file evidence in reply.
The matter came up before me for a final hearing on 24th May, 1982. None represented the Opponents. Shri Raj K. Anand, Advocate and Shri Amarjit Singh, Advocate appeared for the Applicant.
At the hearing it was found that the Opponents' Attorney had filed on 22nd May, 1982, a...
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