Case: Gemini Distilleries Pvt. Ltd., Bangalore Vs The Brihan Maharashtra Sugar Syndicate Ltd., Pune. Trademark Tribunal
| Counsel | For Appellant: Mr. M.P. Mirchandani, Advocate and For Respondents: Mr. Mohan Dewan, Advocate |
| Judges | T. R. Subramanian, DRTM |
| Issue | Trade and Merchandise Marks Rule, 1959 - Rules 53 to 56; Trade and Merchandise Marks Act, 1958 - Sections 9, 11(a), 12(1), 18(1) |
| Citation | 1988 (8) PTC 93 (Reg) |
| Judgement Date | January 19, 1988 |
| Court | Trademark Tribunal |
Judgment:
T. R. Subramanian, DRTM
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On 11th June 1976, an application was filed being Application No. 315685 by The Brihan Maharashtra Sugar Syndicate Limited, 980, Sadashiv Peth, Commonwealth Bldg., Laxmi Road, Pune-411030 (hereinafter referred to as the applicants) seeking registration of a mark in Part A of the register in respect of liquors under class 33 claiming proprietorship to the mark on the basis of user since 30th June, 1971. The applicants mark consists of the word 'BAHADUR'. When the Trade Mark Registry raised some objection to the applicants mark on the ground of conflict the applicants filed evidence to substantive user. The application was thereafter advertised before acceptance and it was accordingly advertised in the Trade Marks Journal No. 681 dt. 16-10-1977 at page 472.
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On 7th February 1978, a notice of opposition was filed by M/s. Gemini Distilleries Private Limited, 9th Mile Stone, Tumkur Road, Dasarahalli, Bangalore-560057 (hereinafter referred to as the opponents) objecting to the registration of the applicants mark on the grounds interalia:
That the opponents are the proprietors of the trade mark 'BAHADUR' and that they have filed an application for registration of the mark under No. 308254 in respect 'Rum in class 33' and the same is pending with the Trade Marks Registry.
That the opponents have been using the aforesaid mark uninterruptedly since May, 1971 with the result that the mark has become distinctive and exclusively identified by the public with the goods of the opponents.
That the applicant's mark is similar to the opponent's aforesaid mark and that the use of the impugned mark would therefore lead to confusion and deception.
That accordingly the applicant's mark shall be refused registration under Sections 9, 11(a), 12(1), 12(3) and 18(1) of the Act.
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The applicants filed a counterstatement denying all the material averments made in the notice of opposition and contended that they have been marketing alcoholic products with brand name 'BAHADUR' from 31st June 1971. They submitted that they are the proprietors of the mark and as they have been using it for the last five years they are entitled for registration under Section 12(3) and in fact the opponents are infringing their mark since the year 1971.
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The opponents did not file any evidence in support of opposition while the applicants filed an affidavit of Shri Omparkash Agarwal which is a trade affidavit and also from Shri Suresh Tikhe an...
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