Case: Vivekananda Match Company, Sivakasi Vs Jupiter Match Works, Srivilliputtur. Trademark Tribunal
| Counsel | For Appellant: Mr. M.K. Rao, Advocate and For Respondents: Mr. V.H. Mehta, Advocate |
| Judges | K. C. Kailasm, JRTM |
| Issue | Trade and Merchandise Marks Act, 1958 - Sections 9, 11(a), 11(b), 11(e), 18(1) |
| Judgement Date | November 16, 1990 |
| Court | Trademark Tribunal |
Judgment:
K. C. Kailash, JRTM
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On 8th April 1980 P. Karukkuvel and M. Rathnaswamy, trading as Jupiter Match Works, Venkateswarapuram, Srivilliputtur. Ramanathapuram Distt, (hereinafter referred to as the Applicants) filed an application for registration of a label containing the words HORSE and a device of a horse in Class 34 in respect of safety matches. After initial objections and after hearing the Applicants, the application was advertised before acceptance in Trade Marks Journal No. 841 dt. 16.6.1984 with the specification of goods being amended as "safety matches for sale in the State of Gujarat, Maharashtra, Karnataka, Andhra Pradesh, Madhya Pradesh and Tamilnadu."
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Two opposition were filed in respect of the aforesaid application. One by Wimco Limited, Bombay under opposition No. MAS-1796 and another by G. Kathiresan, G. Velayutham, G. Janarthanan, G. Vivekanandan, G. Jeyaprakash and G. Nagarajan trading as The Vivekananda Match Company, Vilampatti P.O., Sivakasi 626 120, Tamilnadu (hereinafter referred to as the Opponents in these proceedings.)
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The first Opposition No. MAS -- 1796 initiated by Wimco Limited, Bombay came to be settled as per consent terms dt. 29.1.87, the tribunal having been satisfied that the constent terms were in the best interests of both parties and were also conductive to public interest. However, the specification of goods was ordered to be corrected to read as:
Safety matches for sale in the districts of Surat, Mehsana and Anand in the State of Gujarat, Jalna, Dhula, Chandrapur, Aurangabad and Ahmednagar in the State of Maharashtra; Manglore District in the State of Karnataka; in the district of Nizamabad, Karimnagar, Adalibad, Medak, Nellore and Warangal in the state of Andhra Pradesh; in the districts of Burhanpur, Khandwa, Dhamtari, Rajnandgaon, Durg, Bilaspur, Raipur, and Indore in the State of Madhya Pradesh; in the districts of Kamaraj, Pasumpon Muthurama-linganar, Ramnand, Madurai, Tanjore, Coimbatore and Anna in the State of Tamilnadu.
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The second Opposition No. MAS -- 1794 came up before me for a hearing on 15.11.90 when Shirr M.K. Rao, Advocate, appeared on behalf of Opponents and Shirr V.H. Mehta, Advocate, appeared on behalf of Applicants.
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The notice of opposition is based on Secs. 9, 11 and 18 of the Act. However, at the hearing, the Opponents' Advocate did not pursue the objection u/s 9. As already mentioned, the applicants' mark consists of the device of horse and the word HORSE and the mark is prima facie distinctive and qualified for registration under Sec. 9 of the Act.
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Before proceeding to consider the Opponents' objection under Sec. 11(a), (b) and (e), it may be relevant to take up the Opponents' main objection under Sec. 18 of the Act, which really revolves round the request on form TM-16 dt. 28.7.88 filed by the Applicants during the course of these proceedings. By this request on form TM-16, the Applicants seek to amend the name of the Applicants to include the name of S. Sundaribai as one of the partners of the Applicants' firm. In this connection, Shri V.H. Mehta counsel for Applicants referred me to the affidavit dated 18th July 1988 of M. Ratnaswamy one of the partners of Applicants' firm. He drew my attention in particulars to paras 3, 4 and 5 of the said affidavit which read as follows:
"3. The above mentioned Application No. 360480 in class 34 was filed by my firm Jupiter Match Works on 8.4.1980 for registration of the trade mark consisting HORSE device label. On that date the firm consisted of three...
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