Application for rectification of the trade mark “KELUR” registered under No.1123243 in Class 5 under the provisions of the Trade Marks Act, 1999. Ans:- Allowed = M/s. Sun Pharmaceuticals Industries Limited, Having office at ACME PLAZA, Andheri – Kurla Road, Chakala, Andheri (East) MUMBAI- 400 059 …Applicant (Represented by Shri Sachin Gupta ) Vs. 1. M/s. Optica Pharmaceuticals, 394-A/6, Sawanpuri Extension, Jagadhari – 135 001 Yamuna Nagar. 2. Registrar of Trade Marks, Baudhik Sampada Bhavan, Near Anntop Hill Head Post Office, S.M.Road, Mumbai-400 037 … Respondents (Represented by None) published in http://www.ipab.tn.nic.in/208-2013.htm

Application for rectification of the trade mark “KELUR” registered under No.1123243 in Class 5 under the provisions of the Trade Marks Act, 1999.

 

2    The application for rectification was filed on various grounds. The applicant’s main averment was that they had been using the trade mark “KELUR” prior to that of the respondents, who had been using a similar trade mark “KELUR”.  The rectification application was filed on 11.05.2006.

On 10.07.2010, when the matter was placed before the Tribunal, the respondents herein represented through a counsel and submitted that they have already discontinued the use of the impugned trade mark.

 

8.    In view of the above, the applicants prayed that the impugned trade mark be cancelled for non-use.

For the above mentioned reasons, the original application for rectification is allowed with a direction to the Registrar of Trade Marks to remove the trade mark “KELUR” registered under No.1123243 in Class 5.  There shall be no order as to costs.

INTELLECTUAL PROPERTY APPELLATE BOARD

 

Guna Complex Annexe-I, 2nd Floor, 443, Anna Salai, Teynampet,

Chennai-600 018

(Circuit Bench sitting at Delhi)

 

FRIDAY, THIS THE      20^th DAY OF SEPTEMBER, 2013

 

ORA/90/2006/TM/DEL

 

 

Hon’ble Ms.  S.Usha                                                       …   Vice     Chairman

 

Hon’ble Mr.V.Ravi                                                        …Technical Member

(Trade Marks)

 

M/s. Sun Pharmaceuticals Industries Limited,

Having office at ACME PLAZA,

Andheri – Kurla Road,

Chakala, Andheri (East)

MUMBAI- 400 059                                                                              …Applicant

(Represented by Shri Sachin Gupta )

Vs.

 

1.  M/s. Optica Pharmaceuticals,

394-A/6, Sawanpuri Extension,

Jagadhari – 135 001

Yamuna Nagar.

 

 

2.  Registrar of Trade Marks,

Baudhik Sampada Bhavan,

Near Anntop Hill Head Post Office,

S.M.Road, Mumbai-400 037                                                   … Respondents

 

(Represented by  None)

       ORDER:–  (208 of 2013)

 

Hon’ble Ms.S.Usha Vice Chairman

 

Application for rectification of the trade mark “KELUR” registered under No.1123243 in Class 5 under the provisions of the Trade Marks Act, 1999.

 

2    The application for rectification was filed on various grounds. The applicant’s main averment was that they had been using the trade mark “KELUR” prior to that of the respondents, who had been using a similar trade mark “KELUR”.  The rectification application was filed on 11.05.2006.

3.    The respondents herein filed their counter statement on 24.11.2006. The applicants herein filed their reply to the counter statement on 27.02.2007.

 

4.   On 18.07.2013, when the matter was posted for hearing, the counsel for the applicant was present and none appeared for the respondents. The notice sent to the respondents for the hearing on 18.7.2013 was returned with an endorsement “unserved”. So we directed the applicants to send a notice to the respondents for the hearing on 19.08.2013 by Speed Post with Acknowledgement due and by Courier.

 

5.    On 19.08.2013, the applicants filed the affidavit in proof of service of notice on the respondents. The respondents did not appear on 19.08.2013 despite service of notice.  We therefore set the respondents exparte and we heard the applicants counsel.

 

6.    Learned counsel placed before us the orders passed by the Competition Appellate Tribunal. On 04.01.2010, the Tribunal passed following  order in Unfair Trade Practices Enquiry No.78 of 2004:-

 

“20. In view of the factual and legal position highlighted above, the inevitable conclusion is that the complainant is entitled to the reliefs prayed for and the respondent is prohibited from using the trade mark “KELUR” forthwith. An affidavit of compliance shall be filed within two months.  If there is violation of this order it shall be open to the complainant to seek such relief as is available in law.”

 

7.  On 10.07.2010, when the matter was placed before the Tribunal, the respondents herein represented through a counsel and submitted that they have already discontinued the use of the impugned trade mark.

 

8.    In view of the above, the applicants prayed that the impugned trade mark be cancelled for non-use.

 

 

9.    For the above mentioned reasons, the original application for rectification is allowed with a direction to the Registrar of Trade Marks to remove the trade mark “KELUR” registered under No.1123243 in Class 5.  There shall be no order as to costs.

 

       (V.Ravi)                                                    (S.Usha)
Technical Member                                        Vice Chairman

   (Trade Marks)

 

 

ksr

Reportable: Yes/No