Case: Hindustan Colour & Chemical Industries, Bombay Vs Noble Paints and Varnish Company Pvt. Ltd., Bombay. Trademark Tribunal
| Counsel | For Appellant: Mr. S.B. Shah, Advocate and For Respondents: Mr. Mohan Dewan, Advocate of R.K. Dewan & Co. |
| Judges | T. R. Subramanian, DRTM |
| Issue | Trade and Merchandise Marks Act, 1958 - Sections 9, 11, 32(a), 46 |
| Judgement Date | June 24, 1988 |
| Court | Trademark Tribunal |
Judgment:
T. R. Subramanian, DRTM
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Proceedings herein relate to Rectification of Regd. Trade Mark No. 157796 which has been registered as from 7-3-1953 under the Trade and Merchandise Marks Act, 1940 in class 2 in the name of M/s. Noble Paint & Varnish Company Pvt. Ltd., Fergusson Road, Lower Parel, Bombay-13 (hereinafter referred to as the Regd. Proprietors). The impugned mark consists of the word 'SILVOLITE' and registered in respect of paints and varnishes (other than insulating varnishes) and distempers. The mark was proposed to be used on the date of application.
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On 16-7-1980 Shri Jayantilal Keshavji Parekh and Manubhai Keshavji Parekh carrying on business in partnership in the name of Hindustan Colour & Chemical Industries, at Unit No.9, Dhanraj Industrial Estate, Parel, Bombay-13 (hereinafter referred to as the Applicants for Rectification) filed an application for Rectification seeking removal of the impugned Regd. Trade Mark No. 157796. In the application for rectification on form TM-26 and in the statement of case filed therewith the applicants alleged interalia:
That they are aggrieved by the fact that the Regd. Proprietor has threatened the applicants for the use of their mark SILVOCEM in respect of water proofing coloured cement on the strength of their aforesaid Regd. Trade mark that they are "persons aggrieved" under the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as the Act.)
That they are carrying on a business of manufacturing aluminium paints coloured cement under the trade mark SILVOCEM:
That the Regd. Proprietor has suppressed the fact that the applicants had intended to use the mark SILVOLITE for aluminium paint and aluminium varnish for which goods only the impugned Regd. Trade mark has been used. The registration of the above trade mark was therefore obtained by fraud within the meaning of Section 32(a) of the Act inasmuch as the Regd. Proprietors did not disclose to the Registrar of Trade Marks the true intention to use the mark for aluminium paints and aluminium varnishes and had they stated their intention that the mark would have offended the provisions of Section 9(1) (d) of the Act and it would not have been registered.
That the impugned mark was registered without sufficient cause as it offended the provisions of Sections 9 and 11 of the Act inasmuch as the word SILVOLITE is not distinctive and is descriptive of the goods and also inasmuch as its use for non aluminium paints and non aluminium varnish would be deceptive.
That the impugned mark has never been used by the Regd. Proprietor on any goods other than aluminium paints and aluminium varnishes ever since the registration and therefore offended against the provisions of Section 46(1)(b) of the Act.
That in all the foregoing promises the impugned mark should be expunged from the Register.
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The Regd. Proprietor filed a counter statement denying...
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