Case: Hindustan Lever Limited, Bombay Vs General Detergents, Vapi, Gujarat. Trademark Tribunal
| Counsel | For Appellant: Mr. Bharatan instructed by M/s Crawfor Bayley & Co., Advocate and For Respondents: Mr. Mohan Dewan and Mr. M.R. Nair, Advocate |
| Judges | K. K. Sharma, DRTM |
| Issue | Trade and Merchandise Marks Act, 1958 - Sections 11(a), 12(1), 18(1), 18(4) |
| Citation | 1992 (12) PTC 65 (Reg) |
| Judgement Date | December 02, 1991 |
| Court | Trademark Tribunal |
Judgment:
K. K. Sharma, DRTM.
On 7th August 1978, M/s. Hindustan Lever Limited, Hindustan Lever House, Backbay Reclamation, Bombay-400 020 (hereinafter called as the Applicants for Rectification) filed an application to rectify the Register by removing therefrom the entry relating to Registered Trade Mark No. 298174 registered in class 3 in the name of M/s. General Detergents, 25/26, Vapi Industrial Estate, Vapi, Gujarat State (hereinafter called as the Registered Proprietors) on the grounds stated in the statement of case. The grounds stated in the statement of case inter alia reads as under:-
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That the applicants are the proprietors of several trade marks containing or consisting of the word WHEEL and/or the device of wheel, registered in Class 3 in respect of inter alia, soaps and washing preparations, particulars of the registrations are provided in para 1 of the Application for Rectification. All the registrations are valid and subsisting.
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That the said trade marks have been extensively used by the applicants in respect of soaps and detergents and have acquired a wide reputation among dealers and the general public and are associated with the applicants' goods exclusively.
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That the applicants came to know for the first time that the registered proprietors had obtained a registration of the mark bearing No. 298174 when the registered proprietors' counter-statement in Opposition No. Bom-3023 to Application No. 302184 was delivered to them on 6th April, 1977.
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The mark registered under No. 298174 being identical with or deceptively similar to the Applicants' various wheel marks and is not distinctive has been registered in contravention of the provisions of Sections 9, 11 and 12(1) of the Act and the said trade mark should be expunged from the Register. It was also alleged that the registered proprietors have obtained the registration by fraud in as much as they had made an untrue claim of proprietorship and also made false claim of the use of the trade mark since 1972. The registration of the side trade mark having been obtained by deceiving the Registrar by deliberately making the aforesaid false claims, the said registration is not valid under Sections 18 and 32 of the Act and should be expunged as the entry in the Register relating to the said trade mark has been made without sufficient cause and it wrongly remains on the Register.
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That the trade mark was registered without any bona fide intention on the part of the registered proprietors that it should be used in relation to those goods and there has in fact been no bona fide use of the trade mark in relation to those goods by any proprietor thereof for the time being upto a date of one month before the date of application within the meaning of Section 46(1)(a) of the Act. It was also alleged that the applicants are "persons aggrieved". It was prayed that the Register be rectified by removing therefrom the entry relating to the Registered Trade Mark No. 298174 and the costs of the proceedings were also asked for.
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The registered proprietors filed counter-statement which consists of general denials. It was pleaded that the mark has been used since 1972 by the registered proprietors (including their predecessors in business) continuously and uninterruptedly on a very large scale. The registered proprietors have also been advertising their products alongwith the trade mark registered by them. It was also stated that there is delay in filing the rectification proceedings, and despite large scale use by the registered proprietors since 1972, no instance of actual confusion or deception has been brought to their notice. It was prayed that the application may be dismissed and the costs of the proceedings may be awarded.
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The evidence in support of application for rectification consists of an affidavit of Shri Srinivasa Padmanabhan alongwith Exhibits A, B and C. Trade declarations were also filed from traders. The evidence in support of registration consists of an affidavit of Mr. Nirupama Tejura alongwith exhibits. The evidence in reply consists of an affidavit of Shri Srinivasa Padmanabhan alongwith exhibits A and B. On completion of...
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