Case: Dil Pasand Company, Bombay Vs Mercantile Essential Oil Co., Bombay. Trademark Tribunal

CounselFor Appellant: Mr. I. N. Kayser, Adv. and For Respondents: Mr. Laljee B. Desai, Adv.
JudgesV. G. Nair, JRTM
IssueTrade and Merchandise Marks Act, 1958 - Section 32
Citation1981 (1) PTC 99
Judgement DateJuly 12, 1974
CourtTrademark Tribunal

Judgment:

V. G. Nair, JRTM

These proceedings relate to an application made on 24th February, 1971 by Mrs. Sanjidabanu lklaq Ahmed, Mrs. Khurshid Begam Iklaq Ahmed and Mohd. Nayeem Akhtar Ikalaq Ahmed, trading as Dil Pasand Company of 35, Temker Street, Bombay 8, (hereinafter referred to as the "Applicants") to rectify the Register by expunging therefrom trade mark No. 175685 of Sunderlal Manekchand Sheth, Mangaldas Manekchand Sheth, Kishore Kumar Sunderlal Sheth, Mahendra Kumar Sunderlal Sheth, Madhukar Sunderlal Sheth, Shashikant Sunderlal Sheth, Virendra Kumar Sunderlal Sheth and Kirti Kumar Sunderlal Sheth, trading as the Mercantile Essential Co. of 5, Mint Road, Bombay-I-(hereinafter referred to as the "Registered proprietors"). The trade mark in question consists of the word MAHALABIYA and it is registered in Class 3 in respect of essential oils, cosmetics and perfumery as of 9th August, 1956.

In the application several grounds are stated, but at the hearing before me Shri I. N. Kayser, Counsel for the Applicants, relied only on the following grounds, namely:

that the registration of the trade mark was obtained by fraud by giving altogether different meaning of or no meaning at all in respect of the word MAHALABIYA; and

that the mark was registered without sufficient cause and it is wrongly remaining on the Register of Trade Marks.

Before considering the above grounds, since an application for rectification of the Register can be made only by "a person aggrieved", it is necessary to give finding whether the Applicants have established that they are 'persons aggrieved". After reading the application for rectification there is no difficulty in giving such a finding particularly having regard to the liberal interpretation of the above phrase by the courts (vide A. J. Vulcan v. V.S.V. Palanichamy, A.I.R. 1969 Cal. 3). The applicants state that they are not only in the same business as the Registered proprietors but they are threatened with legal proceedings by the Registered Proprietors for using the word MAHALABIYA which they are legitimately entitled to use as a descriptive term in respect of their goods. I, therefore, find that the Applicants have established that they are "persons aggrieved".

Coming to the merits of the application, as regards Applicants' first ground namely that registration of the trade mark was obtained by fraud, their allegation is that MAHAIABIYA is a purely descriptive word and that this fact was held back...

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