Case: Campa Beverage Pvt. Ltd., New Delhi Vs Rogers and Company Pvt. Ltd., Bombay. Trademark Tribunal

CounselFor Appellant: Mr. M.R. Nair, Advocate instructed by M/s. R.K. Dewan and Company
JudgesM. C. Gupta, ARTM
IssueTrade and Merchandise Marks Act, 1958 - Sections 9, 11(a), 12(1), 18(1), 18(4)
Citation1989 (9) PTC 275 (Reg)
Judgement DateSeptember 11, 1989
CourtTrademark Tribunal

Judgment:

M. C. Gupta, ARTM

This order will dispose of the above opposition filed on 21.10.1986 by the above-named opponents opposing the registration of Trade Mark LIMELITE (word per se) filed in class 30 by the above-named applicants. This application was advertised before acceptance under Section 20(1), Proviso vide Journal No. 890 in class 30 for the goods "Edible ice, ice fruit, ice cream, fruit beverages and flavourings for beverages, sugar syrups, fruit ice and fruit, all with lemon flavour being goods includes in class 30.

The opponents based their objection on the following ground: -

That the impugned mark is neither adapted to distinguished nor capable or distinguishing the goods of the applicants and, therefore, not registerable under Section 9 of the Act.

That the Trade Mark LIMELITE of the applicant is virtually, phonetically, and structurally the same as opponents Trade Mark LIMELIGHT under their Application No. 380619B which has already proceeded for registration.

That the Opponents mark under Application No. 380619B was sought to be opposed by the above applicants but, the said opposition was deemed to be abandoned under Rule 53(2) of the Trade and Merchandise Marks Rules, 1959.

That the applicants' Mark is deceptively similar to the opponents mark and the goods under the rival marks also goods of the same description and therefore, the registration of applicant's Mark is prohibited under Section 11(a) of the Act. The opponents have also challenged the claim of proprietorship by the applicants of their Mark under Section 18(1) of the Act.

That the applicants marks should be refused registration under Sections 9, 11, 12(1) and 18 of the Act. The opponents have also requested for exercise of discretion vested in this Tribunal under Section 18(4), by refusing the application as the applicants' Mark is only proposed to be used on the date of application and that no hardship or prejudice would be caused to the applicants if the above application is refused.

The applicants filed the counter-statement on 4.2.87 denying all the material contention made in the notice of opposition and also submitted that the goods in the rival Marks are different and also of different description as that in the opponents' mark.

In support of the opposition, opponents filed an affidavit of Shri P.S.R.K. Prasad dt. 5.6.87 as evidence. The applicants have not filed any evidence in support of their application inspite of the due opportunity given to...

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