Case: I.T.C. Limited, Calcutta Vs GTC Industries Limited, Bombay. Trademark Tribunal

CounselFor Appellant: Mr. Bharatan, Advocate instructed by M/s. Crawford Bayley & Co. and For Respondents: Mr. M.R. Nair, Advocate, instructed by M/s. R.K. Dewan & Co.
JudgesM. C. Gupta, ARTM
IssueTrade and Merchandise Marks Rules, 1959 - Rule 116; Trade and Merchandise Marks Act, 1958 - Sections 9, 11(a), 18(1), 18(4)
Judgement DateSeptember 01, 1988
CourtTrademark Tribunal


M. C. Gupta, ARTM

On 13th April, 1982 an application was filed being Application No. 386698 by M/s. Golden Tobacco Company Ltd., Tobacco House, Vile Parle, Bombay 400056 (Hereinafter referred to as the applicants) in respect of Cigarettes in class 34 for registration of a trade mark. '3 CHEERS' (label). The mark was proposed to be used on the date of the application. The application was advertised in due course in Trade Marks Journal No. 877 dated 16-12-1985 at page 555.

On 14-12-1986, M/s. I.T.C. Limited, Virginia House, 37 Chowringhee, Calcutta 700071 (hereinafter referred to as opponents) filed a notice of opposition under section 21(1) objecting to the registration of the aforesaid trade mark on the following grounds:

That the trade mark 3 CHEERS including the word CHEERS per se is not registrable in that it is neither distinctive nor capable of distinguishing nor does it satisfy the requirements of the Trade and Merchandise Marks Act, 1958 as to registrability. The trade mark applied for is a laudatory expression and it does not satisfy the requirements of the Act as to registrability in terms of Section 9 of the Act.

That the consideration must also be given to the question whether other traders are likely in the ordinary course of their business and without improper motive, to desire to use the mark upon or in connection with their own goods. That no exclusive right to the use of the expression CHEERS can be claimed by any single manufactures or traders.

That the registration of the mark by an individual trader would unduly interfere with the rights of the opponents as well as the public and would embrass the trade and the opponents in the course of their trade.

That the registration of the trade mark would be contrary to the law in force.

That the applicants cannot claim any proprietorship in the trade mark applied for.

That the Registrar should exercise his direction adversely keeping in view the interest of the general public and purity of the Register.

The applicants filed a counter-statement as one of the denial to the notice of opposition. The applicants stated that they are the registered proprietors of the trade mark THREE CHEERS as a brand name since May 1972. That the applicants are the proprietors of the trade mark consisting of words THREE CHEERS under Application No. 279917B in class 34 and the same has been associated with the present application under Section-16 of the Trade and Merchandise Marks Act...

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