Case: Flower Tobacco Company, Moradabad Vs Wajidsons Private Ltd., Moradabad. Trademark Tribunal
| Judges | M. R. Bhalerao, DRTM |
| Issue | Trade and Merchandise Marks Rules, 1959 - Rule 56; Trade and Merchandise Marks Act, 1958 - Sections 11(a), 12(3), 55(1) |
| Citation | 1985 (5) PTC 146 (Reg) |
| Judgement Date | April 25, 1985 |
| Court | Trademark Tribunal |
Judgment:
M. R. Bhalerao, DRTM.
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On 20th December, 1977 Wajidsons Private Ltd., Prince Road, Moradabad, Uttar Pardesh (hereinafter referred to as, "the Applicants,") made an Application being No. 331784, in class 34, to register the trade mark label containing inter alia the device of a coffee pot and the word "mark Dalah Wajid" in Arabic characters meaning "coffee pot Wajid Brand" in respect of "tobacco for hukka." In the Application, the Applicants have claimed user as 'since January 1970' In due course, the Application was advertised before acceptance in the Trade Marks January No. 734 dated Ist January, 1980 at page 1135.
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On 6th February, 1980 Flower Tobacco, Faiz Ganj Road, Moradabad 244084 (hereinafter referred to as, "the opponents,") lodged a Notice of Opposition to the registration of the aforesaid trade mark on the grounds, which may be summarised as under.
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That the Applicants have opposed the Opponents Applicants No. 339005 in respect of 'tobacco for hukka for export only."
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That in view of the user of the Opponents trade mark would be likely to deceive of cause confusion under Section 11 (a).
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In their counter-statement, the Applicants have stated that they have been exporting tobacco for hukka since 1970 and that they have used their label as a whole fore goods sold in India and abroad.
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The evidence in support of Opposition consists of one affidavit dated 6th December 1980 by Abdul Mussawir.
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As the Applicants had not filed evidence in respect of Application hearing was posted for 3rd January, 1985. On 10th January, 1985, the Applicants have filed as interlocutary petition craving leave to file "further evidence" under Rule 56. The said petition was allowed, subject to the condition that the Applicants should pay Rs. 35/- to the Opponents as costs within one month from the date of the order.
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The matter came before me again on 11th March, 1985. Shri Raj K, Anand, Advocate appeared for the Opponents, Shri S. C. Chadha, Advocate appeared foe the Applicants.
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At the hearing, the learned counsel for the Opponents has argued that according to the order dated 19th January, 1985, the Applicants' evidence was to considered as 'further evidence' under Rule 56 only if had paid the costs of Rs. 350/- to the Opponents one month from the date of the order. On the other hand the learned counsel for the Applicants has argued that even though the said over was dated 19th January, 1985 the same was dispatched on 23rd January, 1985 and it...
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