Application Nos. 656228, 656231, 656233, 656234, 656237 & 656239 and Opposition Nos. 173510, 173509, 173508, 173507, 173506 and 173511. Case: Usha Intercontinental (India) Prop. General Sales Limited Vs Jay Engineering Works Limited. Trademark Tribunal
| Case Number | Application Nos. 656228, 656231, 656233, 656234, 656237 & 656239 and Opposition Nos. 173510, 173509, 173508, 173507, 173506 and 173511 |
| Counsel | For Appellant: Shri N. K. Anand, Shri Arun Kumar Jha, and Shri Sivendra Pratap Singh, Advocates and For Respondents: Shri Ashish Marbaniang and Ms. Navpreet Panjrath, Advocates |
| Judges | G. L. Verma, J. |
| Issue | Trade Marks Act, 1999 - Sections 11, 21; Companies Act, 1956; Copyright Act, 1957; Trade and Merchandise Marks Act, 1958 |
| Citation | 2009 (40) PTC 336 (Reg) (Del) |
| Judgement Date | January 12, 2009 |
| Court | Trademark Tribunal |
Judgment:
G. L. Verma, J., (New Delhi)
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This order will dispose of six oppositions filed by the same opponents against six applications filed by applicants, as stated above, as per request from both the sides that matter to be decided by a common order as the trade mark, name of opponents, name of the applicants and proceedings of the matters are almost similar except the specification of goods and classes.
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The above-said applications were published in the Trade Marks Journal and thereafter the notice of oppositions were filed by the above-stated opponents on the following grounds:
(1) That the opponents are old, established and reputed business source in the field of manufacturing and marketing of electrical and household appliances. They have also engaged in the manufacturing of fans and sewing machines since the year 1967.
(2) That the opponents are the associate company of the Siddharth Shriram Group company, being a reputed group and the group is today among India's most dynamic and reputed business houses with a wide range of interests that include sugar, edible oils, chemicals, air conditioning & refrigeration, automobiles, power equipment and engineering, etc.
(3) That the trade mark USHA in ordinary block letters of the alphabet and the four block USHA logo in respect of goods falling in classes 7, 9 and 11 are the registered proprietors of the mark. Details are as under:
(a) Trademark USHA (logo)
Registration No. 195536
Class 07
Goods Sewing machines and parts thereof (except needles)
Renewed up-to April, 20, 2009
(b) Trademark USHA (logo)
Registration No,: 216380
Class 07
Goods Electric motors (not for land vehicles)
Renewed up-to July 5, 2005
(c) Trademark USHA (logo)
Registration No.: 479968
Class: 07
Goods Sewing machines and parts thereof
Renewed up-to October 19, 2008
(d) Trademark USHA (logo)
Registration No,: 5298034
Class 07
Goods All types of stands, tables, components and other related parts and accessories for sewing machines.
Advertised in Journal No. 1252 dated August I, 2001
(e) Trademark USHA (logo)
Registration No. 195537
Class 11
Goods Fans (electric)
Renewed up-to April 20, 2004
(4) That the four block USHA label is an original and distinctive artistic work consisting of letters U, S, H and A written in white within four separate blocks of red. They are the copyright owner under No. A-2518679 dated 3/9/1979.
(5) That the opponents besides the USHA logo using the trade mark SHRIRAM and a device of petals. The details are as under:-
(a) Trademark SHRIRAM
Registration No. 423485
Class 11
Goods Electric fans, regulators and parts thereof
Renewed up-to June 21, 2005
(b) Trademark Device of Petals
Registration No. 322748
Class 07
Goods Sewing machines and parts thereof included in class
Renewed up-to February 7, 2005
(c) Trademark Device of Petals
Registration No. 322749
Class 11
Goods Electric fans and parts thereof included in Class 11
Renewed up-to February 7, 2005
(d) Trademark Device of Petals
Registration No. 4173464
Class 07
Goods Fuel injection equipment, pumps and components thereof and Sewing machines and parts thereof included in Class 7.
Renewed up-to February 8, 2005
(e) Trademark Device of Petals
Registration No.: 417347
Class 11
Goods Electric fans and regulators and parts thereof.
Renewed up-to February 8, 2005
(6) That the applicants have applied for registration of trade mark USHA SHRIRAM logo which is five block logo comprising the four block USHA logo, a petals device with the word SHRIRAM within the fifth adjacent block in respect of certain goods falling in class 28. The opponents trade mark USHA word per se logo and device of petals alongwith word SHRIRAM have been distinctive in respect of goods of the opponents and are well known during the course of trade. The adoption of the impugned trade mark by the applicants is dishonest and by mala fide intention to take undue advantage of opponents reputation and goodwill. The use of the impugned trade mark of the applicants could cause confusion or deception in the minds of general public and members of the trade believing that the applicants goods enjoys our endorsement, hence the mark is contrary to the provisions of Section 11(2 of the Trade Marks Act, 1999.
(7) The opponents also stated in their notice of opposition that mark of the applicants will cause confusion during the course of trade and adoption of impugned trade mark is dishonest. The registration of the impugned-trade mark be contrary to the provision of Section 9(2)(a) of the Act. They have also stated that the trade mark is neither adapted to distinguish nor capable of distinguishing the applicants goods within the meaning of Section 9(1)(a) of the Act. Further, they have also stated that the use of the trade mark by the applicants is to facilitate passing of action and registration shall be contrary within the meaning of Section 11(3)(a) of the Act. The opponents also stated that impugned trade mark reproduced the four block USHA logo and device of petals. Such reproduction is the infringement of our artistic copyright work. Registration of the impugned trade mark is contrary to Section 11(3)(b) of the Act. The opponents also claimed that their trade mark USHA word and logo with device of petals and the mark SHRIRAM is well known and impugned trade mark is disentitled to protection under Section 11(10) of the Act. Lastly, the opponents also claimed that the applicants is not the proprietors of the impugned trade mark under Section 18(1) of the Act.
(8) They have prayed that impugned applications under numbers 656228, 656231, '656233, 656234, 656237 and...
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