Case: Hotel Amir Pvt. Ltd., Poona Vs Kantilal & Company, Bombay. Trademark Tribunal
| Counsel | For Appellant: Mr. M.P. Mirchandani instructed by M/s. M.P. Mirchandani & Co., Advocate and For Respondents: Mr. K.N. Naik, Advocate |
| Judges | M. C. Gupta, ARTM |
| Issue | Trade and Merchandise Marks Act, 1958 - Sections 9, 11(a), 11(e), 12(1), 12(3), 18(1), 18 (4) |
| Judgement Date | January 17, 1990 |
| Court | Trademark Tribunal |
Judgment:
M. C. Gupta, ARTM.
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On 31.3.1986, a notice of opposition on form TM-5 was filed by above given opponents objecting to the registration of trade mark AMEER (word per se), the subject-matter of Application No. 381481 filed in class 30 by the above-named applicants. This application was advertised before acceptance under Section 20(1) Proviso vide Journal No. 876 dated 1.12.1985. The specification of goods for which the applicants are seeking registration are 'Grain (pearled) including rice, pulse (gram) (broken) spices, tea, coffee, confectionery (non-medicated). Biscuits (not for animals) all being goods included in class 30 for sale in India and export. The applicants are exporters, importers and merchants.
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The opponents objected to the registration of the applicant's mark on the grounds that:
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That they are reputed Hoteliers having the name and style consisting and containing the word' AMIR.
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That the opponents are using the mark AMIR in Cine Boards, Crockery, Stationery, hosiery, packing material. Carry away boxes and other Hotel requirements/items since the year 1968. The opponents also claim to be the original adopters, users and proprietors of the trade mark AMIR under the provisions of Trade & Merchandise Marks Act.
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That such reputation and valuable goodwill have accrued to the opponents trade mark/name consisting of the word AMIR and the goods sold thereunder.
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That the applicant's trade mark AMEER, as sought to be registered, is visually, phonetically and structurally deceptively similar to the well known / reputed/used trade mark AMIR of the Opponents.
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That the goods in the Applicant's mark are identical and /or goods of the same description to the goods covered by the opponent's trade mark.
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That by reasons of close identity or resemblance, the registration of the applicants mark would lead to confusion/deception in the minds of the public.
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That the trade mark sought to be registered by the applicants is not adopted to distinguish and /or capable of distinguishing the applicant's goods and contravenes the provisions of Section 9 of the Act.
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That having regard to the user acquired by the opponents in their mark AMIR, the use and registration of the applicants mark AMEER would be barred under section 11(a) and 11(e) of the Act.
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That the applicants cannot claim to be the proprietors of their trade mark in terms of Section 18(1) of the Act. The opponents raised their objections under sections 9, 11 (a), 11(e) and 18(1) of the Act and also submitted that the forgoing averments constitutes sufficient ground for the exercise of the discretion, vested in this Tribunal, to refuse the impugned application.
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The applicants filed their counter statement on 14.8.86 denying material averments of the opponents and submitted that their trade mark is very well known in India and in foreign countries on account of its quality products sold under brand name AMEER, which they are using since the year 1978.
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The opponents filed an affidavit of Smt. Shanta Ramchandra Chitalkar, Manager/Director of the opponents' alongwith Annexure 'A' (details of sales and promotional expenses), Ex. B is a photocopy of the advertisement/publicity in respect of the opponents' Hotel Amir. Ex, C and D also gives the sales turnover of the opponents and a certificates from the Chartered Accountant to this effect, respectively. The applicants' evidence consists of an affidavit of Bharat Kantilal Dalal, partner in the applicants' firm, along with 92 invoices in support of their sales marked Ex. A-1 to...
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