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Case: Gemini Distilleries Pvt. Ltd., Bangalore Vs The Brihan Maharashtra Sugar Syndicate Ltd., Pune. Trademark Tribunal

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Party Name:Gemini Distilleries Pvt. Ltd., Bangalore Vs The Brihan Maharashtra Sugar Syndicate Ltd., Pune
Counsel:For Appellant: Mr. Mohan Dewan, Advocate
Judges:R. K. Sharma, ARTM
Issue:Trade and Merchandise Marks Act, 1958 - Sections 11(a), 12(1), 18(1)
Judgement Date:June 09, 1988
Court:Trademark Tribunal

Judgment:

R. K. Sharma, ARTM

On 10th February 1978, The Brihan Maharashtra Sugar Syndicate Limited, a company incorporated under the provisions of the Indian Companies Act, having place of business at Common Wealth Building 980 Sadashivpeth, Pune-411030 (hereinafter referred to as the applicants) filed an application for registration of a trade mark consisting of word "BAHADUR" device of Shield with the letter 'B' in class 33 in respect of specification of goods which reads as "liquors" of all kinds including in class 3". In due course of time the application was ordered to be advertised before acceptance subject to specification of goods so as to read as "Rum" being produce of India and subject to disclaimer of letters XXX and subject to association with 315685. The application was advertised accordingly in the Trade Marks Journal No. 735 dated 16.1.1980.

On 14th May, 1980 M/s. Gemini Distilleries Private Limited (a private limited company incorporated under the Indian Companies Act) having place of business of 9th Mile Stone, Thakur Road, Dasarahaili, Bangalore -- 560057 (hereinafter referred to as the opponents) filed notice of opposition interalia on the following grounds: -

That they are engaged in the business of manufacturing/selling "wines, spirits (Beverages) Liquors (spirituous) and whiskeys" for a considerable period.

That in respect of "Rum" in or about May, 1971 they conceived and adopted a trade mark consisting of the word "BAHADUR" and have been using the said trade mark continuously and voluminously since then and their application for registration of the aforesaid trade mark is pending registration under Application No. 308254 in class 33 and is under opposition No. MAS -- 1164.

That much reputation and valuable goodwill have accrued to their said trade mark by reason of continuous and extensive use and advertisement and it has come to connote and denote the goods of their manufacture since May 1971.

That the trade mark, the goods and the area in respect of which the applicants are seeking registration are practically identical with their trade mark and goods in respect of which they have been using their trade mark "BAHADUR".

That the applicants' associated trade mark under No. 315685 for registration of identical trade mark BAHADUR in class 33 is under Opposition No. BOM -- 3365 is pending.

Having regard to the use/reputation of said trade mark BAHADUR acquired by them, the use/registration of similar trade mark by the applicants will inevitably lead to confusion/deception in the trade and purchaser will assume connection in the course of trade between the applicants' goods and thereafter the registration is contrary to the provisions of Sections 11(a) and 12(1) of the Act.

The applicants have never used the trade mark in respect of the goods. They are not and they cannot be the proprietors of the trade mark in question within the meaning of Section 18(1) of the Act.

That the applicants knew of the proprietorship of the opponent's in the mark right from inception of their trade mark, the user claimed...

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