Case: Borachem Industries Pvt. Ltd., Pune Vs Fabril Gasosa, Campal Panjim. Trademark Tribunal

CounselFor Appellant: Mr. M.R. Nair, Advocate and For Respondents: Mr. T.N. Daruwalla, Advocate
JudgesT. R. Subramanian, DRTM
IssueTrade and Merchandise Marks Act, 1958 - Sections 11(a), 12(1)
Citation1991 (11) PTC 274 (Reg)
Judgement DateSeptember 16, 1991
CourtTrademark Tribunal


T. R. Subramanian, DRTM

  1. On 15th May, 1978, an application was filed being Application No. 436516 by Erasmo De Sequeira trading as M/s Fabril Gasosa, Campal Panjim, Goa (hereinafter referred to as the Applicants) seeking registration of a mark in Part 'A' of the Register in respect of Non-alcoholic aerated and non-aerated beveraged, syrups and other preparations for making beverages in class 32 claiming proprietorship to the mark on the basis of user since 5.3.1977. The applicant's mark compromise of the word BONITA. The application was thereafter examined and ordered to be advertised before acceptance for registration in Part 'B' with the specification of goods amended to read as 'non-alcoholic and non-aerated beverages and syrups'. However, through an error, the application was advertised in Trade Mark Journal No. 792 dated 1.6.1982 at page 162 with the specification of goods as "beverages and syrups".

  2. On 13.9.1982, a notice of opposition was filed by Borachem Industries Private Limited, Prema Chambers, 156 -- B, Ganeshpeth, Pune-411002 (hereinafter referred to as the Opponents) objecting to the Registration of the applicant's mark on the grounds inter alia:-

  3. That the applicants mark is neither adapted to distinguish nor capable of distinguishing the applicants goods within the meaning of Section 9 of the Trade & Merchandise Marks Act, 1958 (hereinafter referred to as the Act).

  4. That the opponents have been manufacturing and marketing 'gripe water' under the trade mark BONILA since long and as a result of the long, extensive user and wide publicity, the mark BONILA has already become welknown and the customers as well as the people engaged in the trade invariably identify and associate the trade mark BONILA with their goods.

  5. That the goods of the applicants and that of the opponents are the same and the rival marks are phonetically, visually and concepututally identical, it is likely to cause confusion and deception within the meaning of Section 11(a) of the Act.

  6. That the opponents have registered the trade mark BONILA under Nos. 311606 and 344292 in class 5 and the same has been advertised in Trade Marks Journal Nos. 666 and 739 respectively. They have also registered a number of marks having the prefix BONI and the same are subsisting. Hence, the registration of the applicants mark is prohibited under Section 12(1) of the Act.

  7. That the applicants are not the proprietors of the trade mark as they have copied the...

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