Case: Emjas Trust, Hyderabad Vs Windsor Food Ltd., Vadodara. Trademark Tribunal
| Counsel | For Appellant: Mr. M.R. Nair, Advocate i/b M/s. R.K. Dewan and Co. |
| Judges | M. C. Gupta, ARTM |
| Issue | Trade and Merchandise Marks Act, 1958 - Sections 9, 11(a), 18(4), 21(1) |
| Citation | 1991 (11) PTC 10 (Reg) |
| Judgement Date | June 06, 1990 |
| Court | Trademark Tribunal |
Judgment:
M. C. Gupta, ARTM
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On 30th October 1982, the above given applicants filed an application for registration of a word mark "CRACKER BARREL" in class 30 for the specification of goods 'cakes, pastries, biscuits (not for animals and confectionery (non medicated). The mark was proposed to be used on the date of application. The application was advertised before acceptance under section 20(1) proviso vide journal No. 885 dated 16th April 1986.
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A notice of opposition on a form T.M. 5 was filed by the above given opponents on 15.7.86 objecting to the registration of the applicants mark. The opponents based their objection on the following grounds:
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That the impugned mark is purely descriptive and has direct reference to the character and quality of the goods. It was stated that the word 'CRACKER' is synonymous with the word 'biscuits' and the word 'BARREL' is merely the equivalent of a 'container' and thus the mark is descriptive of the goods in relation to the biscuits or any of the goods containing or consisting of biscuits.
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That the impugned mark fails to qualify for registration under section 9 of the Act.
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That the impugned mark offends against the provisions of section 11 of the Act and the applicants are not the proprietors of the mark under section 18 of the Act.
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Their counter statement the applicants denied the contentions of the opponents and stated that the even the Registrar of Trade Marks has not objected to the distinctiveness of the mark under section 9 of the Act.
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The applicants contended that the notice of the opposition filed by Emjas Trust is not maintainable as the opponent itself is not a 'PERSON' unless represented by any one within the meaning of section 21(1) of the Act and, therefore, no action can be maintained by a 'Trust' in its own name. The applicants requested that the opposition should be dismissed in-limine.
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The applicants refuted the objection taken by the opponents under section 11 of the Act and stated that the opponents have not cared to elaborate their objection under this section i.e. the opponents have not given any reason or justification for maintaining the objection under section 11 of the Act.
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In support of their opposition, the opponents filed an affidavit of one G.B.S. Mani who is a General Power of Attorney holder of Emjas Trust. The applicants have not filed any evidence in support of the applications under Rule 54 of the Trade and Merchandise Marks Rules,1959. Eventually...
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