Case: Fire Equipment Corporation, Bombay Vs Peter Autokits Private Limited, Bombay. Trademark Tribunal
| Counsel | For Appellant: Mr. M.P. Mirchandani, Advocate and For Respondents: Mr. Nair M. Ramkrishnan, Advocate i/by Mr. Mohan Dewan, Advocate |
| Judges | S. G. Borkar, ARTM |
| Issue | Trade and Merchandise Marks Act, 1958 - Sections 9, 11(a), 18(1), 21(5) |
| Citation | 1983 (3) PTC 15 (Reg) |
| Judgement Date | December 10, 1982 |
| Court | Trademark Tribunal |
Judgment:
S. G. Borkar, ARTM.
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On 27th March, 1979 Peter Autokits Private Limited, (hereinafter referred to as the Applicants) of Mathurdas Vasanji Road, Makvana Lane, Marol Naka Andheri (East), Bombay-400 049, filed an application being Application No. 347437 for registration of a trade mark consisting of a label with a device below which appears the word "FIREQUIP" in class 9 in respect of Fire extinguishing apparatus; Fire alarms, fire escapes; Fire Engines; life-saving apparatus and instruments; appliances and clothing for protection of workmen against accidents; industrial safety goggles and spectacles; respirators; blowers, Safety helmets; furnances and gas and miner's masks; face shields; electrode holders; ear-muffs; drench showers; apparatus for the protection of breathing; divers' suits; dresses and apparatus; life belts; welding equipments included in class 9.
2 The application was examined in accordance with the provision of the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as the Act) and the application was ordered to be advertised as accepted for registration on the applicants agreeing to convert the application for registration in part B of the Register and subject to the disclaimer of the word "FIREQUIP". Accordingly, the application was advertised in the Trade Mark Journal No. 740 dated 1st April 1980 on page 21.
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On 31st July, 1980 Fire Equipment Corporation (hereinafter referred to as the opponents) a partnership firm having their partners Maneklal Manilal Sanghvi, S.M. Sanghvi and R.M. Sanghvi carrying on business at Khandelval Bhavan, 166, Dadabhoy Naoroji Road Bombay-400 001, filed Notice of opposition to the application on the grounds stated as follows:
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That the opponents are engaged in the business of manufacturing and marketing "fire fighting equipment, fire hoses and other fitting therefor".
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That the opponents have used several trade marks alongwith the firm name "Fire Equipment Corporation" popularly known as "Fire Equipments'.
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That the opponents are Registered Proprietors of the various trade marks viz., "Fire Marshal", "Jal Parvah", "Jai Kishan".
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That much reputation and valuable goodwill have accrued to the opponents trade marks/trading style.
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That the adoption and use of the name/words "Firequip" by the applicants is not honest and applicants' goods are likely to be passed off as and for the opponents' goods.
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That having regard to the use of the opponents' trade name the use of the applicants trade mark consisting of the word "Firequip" and/or registration thereof would lead to confusion/deception within the meaning of Section 11(a) of the Act.
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That the applicants trade mark is not capable of distinguishing and they cannot have exclusive right over the letter "F" and that the applicants' trade mark cannot be said to have acquired any distinctiveness under section 9 of the Act.
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That the applicants are not the proprietors of the trade mark within the meaning of section 18(1) of the Act.
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That the registration of the trade mark will be in contravention of the provision of sections 9, 11(a) & 18(1) of the Act.
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In their counter-statement the applicants submit interalia that they took over the firm "Firequip Co." with the goodwill of the firm and trade mark in the year 1974 and mark "Firequip" has been in use since 1971. The applicants further submit that they designed a new monogram together with the mark 'Firequip' and that they have been using the same since 1st January, 1977. The rest of the counterstatement is one of denial of the material averments made in the Notice of Opposition. The evidence in support of Opposition consists of an affidavit by Shri Manek Lal Marnilal Sanghvi, a Partner of the opponent firm. The evidence in support of application consists of an affidavit of Jyendrakumar Shah Director of the applicants, supported by Exhibits A, B, C, D, E, F/1 to F/17. The reply evidence consists of an affidavit by...
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