Case: Rashmi Uday Sing Vs Societe Des Produits Nestle S.A.. Trademark Tribunal

Order:

U.L. Barve, Senior Examinor of Trade Marks

1. On 31/10/2000, Rashmi Uday Singh, 13, Firpos, Warden Road, Mumbai 400 026 (hereinafter referred to as the 'Applicants') applied for registration of trade mark good food guide in respect of "Address stamps, advertisement boards of paper or cardboard, albums, announcement cards (stationery), all kinds of bags (envelopes, pouches) of paper or plastics, for packing, book marks, books, cards, coasters of paper or cardboard, diaries, files, greeting cards, magazines, letters, paper sheets, paper weights, pens, periodicals, photographs, pictures, placard of paper or cardboard, place mats of paper, postcards, posters, printed matter, printed publications, newspaper, pamphlets, signboards, stickers, table cloth of paper, table linen of paper, table mats of paper, table napkins of paper, tissue paper, toilet paper, wrappers, wrapping paper, writing pad, writing paper, planners, calendars, and other goods included in Glass 16" under Application No. 967085B through their Agents' M/s. Jehangir Gulabbhai & Bilimoria & Daruwalla. The mark has been used since January, 1993 and applied under the provisions of The Trade & Merchandise Marks Act, 1958, which was repealed and replaced with the Trade Marks Act, 1999 (hereinafter referred to as the 'Act"). Eventually, the application was advertised in the Trade Marks Journal Mega No. 4 dated 25th October, 2003 (made available to the public on 13th January, 2004) on pages 2984 and 2985.

2. On 12/4/2004, Societe Des Produits Nestle, S.A., at 1800, Vevey, Switzerland (hereinafter referred to as the 'Opponents') lodged a notice of their intention on form TM-5 through their Agents' M/s.Intll Advocate to oppose the registration of the impugned application on various grounds raised under Section 9(1)(a), 9(2)(a) read with Section 11 and also under Sections 11(1), 11(3), 11(10), 18(1) and 18(4) under Trade Marks Act, 1999. The same was taken on record and a copy of TM-5 was served to the Applicants.

3. The above named Applicants filed the Counter-statement on Form TM-6 which was on time, hence taken on record. A copy of TM-6 was served to the Opponents. Both the parties filed their respective evidences under Rule 50, 51 and 52 of the Trade Marks Rules, 2002 and the matter was ripe for main hearing. Main hearing was fixed on 10/4/2008. On the said date the Applicants appeared for the hearing, but none appeared for the Opponents, hence hearing was adjourned and further date was fixed for 9/7/2008. The said hearing was also adjourned to 11/12/2008. On 11/12/2008 the Applicants appeared for the hearing, but the Opponents' filed for adjournment of hearing on Form TM-56. Hence, a fresh date was fixed for 29/1/2009 which was further adjourned to 16/3/2009 which was before Ld. Asst. Registrar Shri. Dharam Singh. Both the parties had appeared for the matter. As per the note of Ld. Asst.Registrar, the hearing was adjourned on the ground that both the parties agreed to settle the matter between themselves and a fresh date was fixed for hearing on 12/6/2009. On 12/6/2009, both the parties appeared and Opponents again requested for adjournment and a fresh date was announced at the hearing itself. The hearing date was fixed for 30/6/2009, when both the parties appeared. Shri. Vinod Bhagat, Advocate with a letter of authority from the Opponents' Agent Inttl Advocate was the representative for the Opponents and stated that the Opponents are going to settle the...