Case: Kale Khan Mohd. Hanif, Sagar (M.P.) Vs Nav Neet Kumar Patel & Co., Varanasi (U.P.). Trademark Tribunal
| Counsel | For Appellant: Mr. R.K. Anand, Advocate |
| Judges | M. R. Bhalerao, DRTM |
| Issue | Trade and Merchandise Marks Rules, 1959 - Rule 54; Trade and Merchandise Marks Act, 1958 - Sections 11(a), 12(1), 12(3) |
| Judgement Date | March 07, 1986 |
| Court | Trademark Tribunal |
Judgment:
M. R. Bhalerao, DRTM
On 4th February 1978, Rati Lal Mangal Bhai Patel, trading as Nav Neet Kumar Patel & Co., D-51/14, Pandariba, Varanasi, Uttar Pradesh (hereinafter referred to as "the Applicant") made an application, being No. 333152, to register the trade mark label containing inter alia the Applicant's portrait and the words `star bidi' in Devnagri characters. The goods for which registration was sought were `bidi'. In his application the Applicant has claimed user of the mark as since 1.1.1974. On examination, an objection was raised on the ground of conflict with certain trade marks on the Register and in pending Applications. On receipt of evidence, the Application was advertised in the Trade Marks Journal No. 788 dated 1st April, 1982 at page 30.
On 31st July, 1982, Kale Khan Mohd. Hanif, Bara Bazar, Sagar (Madhya Pradesh) (hereinafter referred to as "the Opponent") lodged a Notice of Opposition, under Section 21(1), to the registration of the aforesaid trade mark on the grounds which are summarised as follows: -
1. That the Opponent is the proprietor of the trade mark STAR BRAND in respect of bidis.
2. That the Opponent has registered his trade mark STAR BRAND under No. 109031.
3. That the Opponent has used his trade mark STAR BRAND for over past 30 years.
4. That the trade mark applied for is deceptively similar to the Opponent's trade mark.
5. That the Applicant's goods and the Opponent's goods are the same.
6. That the use of the trade mark applied for would be likely to deceive or cause confusion.
7. That the Applicant is not the proprietor of the trade mark.
8. That the application should be refused in terms of Sections 12(1), 11(a) and 18(1).
In his counter-statement, the Applicant has denied that his trade mark is deceptively similar to the Opponent's trade mark. He has stated that the leading feature in his trade mark is the portrait. He has offered to disclaim the words STAR BIDI appearing on the label. He has also offered to restrict his area of sale to the States of Bihar and Uttar Pradesh.
The evidence in support of opposition consists of one affidavit by Gulab Ahmed.
The Applicant has not filed evidence in support of application.
The matter was posted for hearing on 21st February, 1986. Shri Raj K. Anand, Advocate appeared for the Opponent. The Applicant's Advocate has filed a request for adjournment of the hearing on the ground that the date of 21st February, 1986 was also the date fixed...
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