Case: Rajneesh Foundation, Pune Vs Sharp Kabushiki Kaisha, Osaka, Japan. Trademark Tribunal
| Judges | Om Prakash, DRTM |
| Issue | Trade and Merchandise Marks Act, 1958 - Sections 9, 11(a), 12(1), 18 |
| Citation | 1989 (9) PTC 245 (Reg) |
| Judgement Date | August 23, 1989 |
| Court | Trademark Tribunal |
Judgment:
Om Prakash, DRTM
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On 9th January, 1978 M/s Sharp Kabushiki Kaisha (Sharp Corporation in English), 22-22 Nagaike-Cho, Abeno-Ku, Osaka 545. Japan (hereinafter referred to as the applicants, made an application No. 332359 in class 9 for registration of a Trade Mark consisting of the device within which there is a white round circle and in that white circle also there is a device of solid black pyramid device (hereinafter referred to as 'the said device') in respect of radio receivers, television receivers, tape recorders, tape players, disk players, tape decks, turners, amplifiers, speakers, earphones, video tape recorders, video disk players, and combined radio receives and tape recorders, all being goods included in class 9. In due course, the said device was advertised in Trade Marks Journal No. 7297 page 759 dated 16.9.1979.
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On 22nd November, 1979, M/s Rajneesh Foundation, represented by trustee Ma. Yoga Laxmi, Shree Rajneesh Ashram, 17 Koregaon Park, Pune 411001, State of Maharashtra (hereinafter referred to as the opponents' lodged a notice of opposition under Section 21 of the Act to the registration of the aforesaid Trade Marks on the grounds briefly sated as under:
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That the opponents are charitable trust having multifarious activities including creation and/or marketing of books, tapes, records, films, textiles, garments, fancy items, toilet preparations, food products.
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That they have centers propagating the teaching Bhagwan Shree Rajneesh in practically all countries of the world including Japan.
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That their tapes, films and records, are played to large audience through the medium of tape recorder, video and audio tape players, tape decks, amplifiers, speakers, video and audio tape recorders and the like.
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That their products, instruments, appliances, apparatus or in relation to them, through the medium of publicity, they have been using since the year 1973 and their emblem mark condition of a triangle placed with a circle.
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That their said Trade Marks has already been registered in class 16, under No. 31892 and they have also applied for registration of the said Trade Mark in class 9, under No. 324937 and the application area also pending in other classes.
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That the Mark applied for registration is deceptively similar to their Trade Mark insofar as it is practically identical to their Trade Marks and house mark. The only difference being that the inner Order of their emblem containing the triangle is a polygen with a large number of sides being an approximation of a circle whereas in the mark applied for, the same feature is a circle. From a distance, the two marks appear identical.
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That the particular striking feature of similarity is that the rim of the fringe containing the triangle is of varying thickness in that the rim facing the base of the triangle is thin whereas that facing the apex is thick. The proportion of inequality m either side of the triangle is also substantially the same and the opponents say than the two marks are deceptively similar.
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That the goods in the present application are already cored under the application No. 324937 in class 9 and the Trade channels of the opponent's goods and the goods of the applicants would be the same.
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That the applicants adoption of the mark is not honest since the opponents products, publicity material literature publications have been extensively made public in Japan the applicants could not have but been award of their trade mark.
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That the designation of the applicants as Manufacture and Merchants is erroneous. The applicants do not have any manufacturing or retailing activity in India. For the reasons aforesaid, the Mark seeking registration is prohibited under the provisions of Sections 9, 11, 12 and 18 of the Act. This is a fit case for the exercise of the learned Registrar discretion in favour of the opponents.
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On 3rd April, 1980, the applicants file their counter-statement while denying all the material averments what it contained in the notice of opposition the following grounds:
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That the applicants carry on a well established business as manufactures and merchants. They are the proprietors of an egg shaped black device within which there is a white round circle and in that white circle there is a device of solid black pyramid device (hereinafter referred to as "the said device").
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That the applicants said device Mark is an Internationally well known Trade Mark and it is already registered in about 40 countries, such as West Germany, U.S.S.R., France, U.K. Switzerland, Austria, Sweden Italy, Benelux, Morocco, South Africa, Peru. Argentina, Costa Rica, Dominican, Cyprus, Chile African Union, Afghanistan Hong Kong, Lebanon, Japan, Iran, Syria, Taiwan and South Korea and so on.
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That the said mark is well known in India...
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