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600018

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The applicant seeks the removal of the mark THAAYAR under No. 1328933 in respect of wet idly dosa flour, wet adai flour, wet rava dosai flour, wet products derived out of cereals and flour, dry idly in Class 30. 10. The user claimed is 05.05.1997. We have already referred to the invoice of the respondent selling Thayar Wet Idly Mavu to the applicant themselves. There are many documents showing wide publicity, the user is proved and the fact that the applicants allowed them to grow is made clear from the evidence. These are special circumstances. The fact that the applicant had purchased Idly batter from respondents shows that it was not clandestine use. It was open continuous use. Being a supplier of wet batter under the mark, the respondent would have thought with justification that the applicant had no objection to the respondent’s use. Therefore, we do not think the mark deserves to be removed. However, considering the fact of use by the applicant, we will exercise our discretion and restrict the respondent to use the mark to the specific goods mentioned in the certificate. 11. The registration certificate shows that registration is claimed only for wet batter. The respondent is restricted to use this mark only to these goods above. ORA is ordered accordingly.

INTELLECTUAL PROPERTY APPELLATE BOARD Guna Complex Annexe-I, 2nd Floor, 443 Anna Salai,  Teynampet, Chennai-600018 *****   M.P.No 242/2011 & M.P. No. 227/2011 in        ORA/185/09/TM/CH            AND                         ORA/185/09/TM/CH     FRIDAY THIS  THE 4th DAY  OF  MAY,  2012     HON’BLE SMT. JUSTICE PRABHA SRIDEVAN                …  CHAIRMAN HON’BLE MS. S. USHA                                                            …  … Continue reading

INTELLECTUAL PROPERTY APPELLATE BOARD 3. The appellant is the proprietor of the trade mark “Kaveri Pipes” under No. 722253 in class 17 in respect of HDPE pipes. They have been in the business of manufacturing of HDPE pipes for 20 years. The mark has been used by the appellant since 20.2.1985 in respect of the said goods. The mark has acquired a good reputation and has come to be associated with the appellant’s goods. According to the appellant the use of the mark Ganga Kaveri by the respondent is likely to cause confusion. The goods are identical, and there is bound to be deception and confusion. The adoption of the impugned mark is malafide and intended to slice away the profits of the appellant. On these and other grounds the appellant opposed the registration. -14. We therefore allow the appeal OA/18/2010/TM/CH, set aside the order dated 6.7.2009 and consequently direct the Registrar to remove the mark “Ganga Kaveri”, bearing No.1315836 in Class 17. The respondent shall surrender the certificate. Miscellaneous Petition No.49/2010 is closed.

INTELLECTUAL PROPERTY APPELLATEBOARD Guna Complex Annexe-I, 2nd Floor, 443, Anna Salai, Teynampet, Chennai-600018   M.P. No.49/2010 in OA/18/2010/TM/CH AND OA/18/2010/TM/CH    FRIDAY, THIS THE 9th DAY OF MARCH, 2012     Hon’ble Smt. Justice Prabha Sridevan                          …   Chairman Hon’ble Ms.S. Usha                                                              …  Vice-Chairman     M/s. Kaveri Piping Sytems Pvt. Ltd. Represented by its … Continue reading

INTELLECTUAL PROPERTY APPELLATE BOARD -As the matters pertain to the registration of the trade mark “MANISH’S” and the issues involved in all the four matters and the parties concerned are one and the same a common order is being passed in all the four matters.-The Registrar has erroneously held that the onus of establishing confusion is always on the opponent/appellant, which is totally contradictory to the well settled proposition of law. In AIR 1953 SC 357 – National Sewing Thread Co. Ltd., Chidambaram, Appellants Vs. James Chadwick and Bros. Ltd., Respondent – The Registrar of Trade Marks, Intervener, it was held at para 22 – “The principles of law applicable to such cases are well-settled. The burden of proving that the trade mark which a person seeks to register is not likely to deceive or to cause confusion is upon the applicant. It is for him to satisfy the Registrar that his trade mark does not fall within the prohibition of S.8 and therefore it should be registered….” 32. Based on the above observation, the onus is cast on the respondent to satisfy the Registrar that the grant of registration would not cause confusion among the public. The other findings of the Registrar as to use, rejection of the objection under Section 12 and 18(1) and others are set aside. 33. For the reasons stated above, we hold that – (a) the original rectification application Nos.ORA/170/2009/TM/CH, ORA/171/2009/TM/CH and ORA/191/2009/TM/CH are allowed since the respondent has not proved user as claimed in their application for registration; (b) the original appeal No.OA/41/2008/TM/CH is also allowed as the respondent has not proved the claim of use; (c) the Registrar of Trade Marks is therefore directed to remove/cancel the trade mark “MANISH’S” registered under Nos.1218966 in Class 31, 1218967 in Class 30 and 1249101 in Class 29 from the register and the application No.810381 in Class 30 a label mark be refused registration. 34. The original rectification applications and the original appeal are ordered accordingly with costs of Rs.5,000/- each. The Miscellaneous Petitions are also dismissed.

INTELLECTUAL PROPERTY APPELLATE BOARD Guna Complex Annexe-I, 2nd Floor, 443, Anna Salai, Teynampet, Chennai-600018     M.P.No.132/2011 in ORA/170/2009/TM/CH AND ORA/170/2009/TM/CH, M.P. No.131/2011 in ORA/171/2009/TM/CH AND ORA/171/2009/TM/CH, M.P. No.133/2011 in ORA/191/2009/TM/CH AND ORA/191/2009/TM/CH          FRIDAY, THIS THE 6th DAY OF JANUARY, 2012   Hon’ble Smt. Justice Prabha Sridevan                    …  Chairman Hon’ble Ms.S. Usha                                               … Continue reading

INTELLECTUAL PROPERTY APPELLATE BOARD The appellant’s case is that they are an established business dealing and manufacturing lime. They have been openly using the word Chamak and have applied for registration on 16.4.93 and the application is pending. The mark applied for by the appellant and the impugned mark are identical. The impugned mark is identical, it is neither adopted to distinguish nor is it capable of distinguishing the goods. Therefore they opposed the registration. 5. The learned counsel for the appellant submitted that the word Chamak was directly descriptive of the goods, and the respondent has not proved user. The appellant relied on AIR 1953 SC 357 – National Sewing Thread Co. Ltd., Chidambaram Vs. James Chadwick and Bros. Ltd. “The principles of law applicable to such cases are well settled. The burden of proving that the trade mark which a person seeks to register is not likely to deceive or to cause confusion is upon the applicant. It is for him to satisfy the Registrar that his trade mark does not fall within the prohibition of Sec.8 and therefore it should be registered. Moreover in deciding whether a particular trade mark is likely to deceive or cause confusion that duty is not discharged by arriving at the result by merely comparing it with the trade mark which is already registered and whose discharged by arriving at the result by merely comparing it with the trade mark which is already registered and whose proprietor is offering opposition to the registration of the mark. The real question to decide in such cases is to see as to how a purchaser, who must be looked upon as an average man of ordinary intelligence, would react to a particular trade mark, what association he would form by looking at the trade mark, and in what respect he would connect the trade mark with the goods which he would be purchasing.”

INTELLECTUAL PROPERTY APPELLATEBOARD   Guna Complex Annexe-I, 2nd Floor, 443, Anna Salai, Teynampet, Chennai-600018 (CIRCUIT BENCH SITTING AT AHMEDABAD)    M.P. 65 OF 2010 IN TA/283/2004/TM/AMD  and  TA/283/2004/TM/AMD  M.P. 66 OF 2010 IN TA/284/2004/TM/AMD    and  TA/284/2004/TM/AMD FRIDAY, THIS THE 6TH DAY OF JANUARY, 2012   Hon’ble Smt. Justice Prabha Sridevan                                …Chairman       Hon’ble  Ms. S. Usha        … Continue reading

applicant is the proprietor of the trade mark CITI WEALTH ADVISORS/CITIGROUP WEALTH ADVISORS (Annexure ‘A’). The applicant came to know about the impugned trade mark through a search. They missed the advertisement of the impugned trade mark and therefore did not oppose the same. According to them “WEALTH ADVISORS” is descriptive and it would be against public interest to grant monopoly to a single trader to the word “WEALTH ADVISORS” involving services in Class 36 and it is also stated that the word “WEALTH ADVISORS” has become publici juris in respect of the services falling under Class 36. Therefore they sought for rectification. The evidence filed by them is at Annexure ‘A’. ‘A-16’ is an advertisement of the applicant which speaks of their online brokerage facility called “CITI WEALTH ADVISORS”. Exhibit ‘A-18’ is the dictionary meaning of wealth. Annexure ‘B-1” is “ASK Wealth Advisors”. Annexure ‘B-3’ is Wealth Advisors, Inc. Annexure ‘B-4’ is “Tamalpais Wealth Advisors” and so on.

INTELLECTUAL PROPERTY APPELLATE BOARD Guna Complex Annexe-I, 2nd Floor, 443, Anna Salai, Teynampet, Chennai-600018     ORA/7/2010/TM/CH    FRIDAY, THIS THE 9th DAY OF MARCH, 2012   Hon’ble Smt. Justice Prabha Sridevan                    …  Chairman Hon’ble Ms.S. Usha                                                       …  Vice-Chairman   Citibank, N.A./Citigroup Inc. 399, Park Avenue, New York, United States of America, 10043.                                  … Continue reading

INTELLECTUAL PROPERTY APPELLATE BOARD- On perusal of the records that the PVG label mark has been registered in the name of the applicants as of 24.12.1998 for the goods falling in class 7. The respondent who was working as the manager of the company and the applicant’s husband had the knowledge of the applicants use and registration. The respondent adoption cannot be said to be bonafide. When the adoption is dishonest the respondent cannot be the proprietor of the trade mark. The registration is therefore in contravention of Section 18 of the Act. 11. When the registration is obtained by suppression of material fact from the notice of the Registrar, the entry is deemed to be an entry made without sufficient cause. The respondent has falsely claimed to be the proprietor of the trade mark. 12. The authorities who are the custodian of register are to be more cautious while granting registration. They are to look into their records before the registration is granted. We find an identical trade mark for identical goods are also registered in the year 1998, the present impugned application has been filed in the year 2005. If the officer had been more careful this impugned mark would not have been registered. 13. The impugned trade mark therefore deserves to be expunged. Consequently, the application is allowed with a direction to the Registrar of Trade Marks to remove/cancel the trade mark registered under No.1384443 in class 7. No order as to costs.

INTELLECTUAL PROPERTYAPPELLATE BOARD Guna Complex Annexe-I, 2nd Floor, 443, Anna Salai, Teynampet, Chennai-600018   ORA/93/2009/TM/CH FRIDAY, THIS THE  3RD DAY OF FEBRUARY, 2012   Hon’ble Ms. S. Usha                                                     …  Vice-Chairman Hon’ble Shri. V. Ravi                                                    …  Technical Member   D.P. Parimala, 471, Avinashi Road, Coimbatore – 641 004.                                                        … Applicant   (Represented by Shri … Continue reading

INTELLECTUAL PROPERTY APPELLATE BOARD- The appellant’s mark is Magic Laxmanrekha which is how all along he has been using the mark. The respondent’s mark as directed for registration is KRAZYLINES LAXMANREKHA all the words in the same line. Krazylines per se has been in the market for long. Even if the application for this mark is subsequent to the appellants mark, in view of the fact that for a long time, the respondent’s carton and label have admittedly shown not only the word KRAZYLINES but also the Slogan “Draw a Laxmanrekha,” the conditions imposed by the Registrar should be sufficient to protect public interest. 15. So for the above reasons, we think this is a case where we must justifiably exercise our discretion in favour of the respondent. The adoption is not dishonest as the respondent has been using the Slogan containing the word LAXMANREKHA for a long time. It is possible that the appellant was inspired to adopt the name from the Slogan. At the same time, we have also given our reason why we do not think there was any dishonesty or fraudulent conduct on the part of the appellant in adopting Magic Lines Laxman Rekha. So the order does not warrant interference. For all the reasons, the appeal is dismissed. No order as to costs.

INTELLECTUAL PROPERTY APPELLATE BOARD Guna Complex Annexe-I, 2nd Floor, 443, Anna Salai, Teynampet, Chennai-600018 CIRCUIT BENCH SITTING AT MUMBAI M.P. NOS.57/2004, 112/2006, 286/2010 & 293/2010 IN TA/62/2003/TM/MUM AND TA/62/2003/TM/MUM AND M.P. NOS.285/2010 &  291/2010 IN OA/20/2004/TM/MUM AND OA/20/2004/TM/MUM  FRIDAY, THIS THE 3RD DAY OF FEBRUARY, 2012   Hon’ble Smt. Justice Prabha Sridevan                                    … Chairman       … Continue reading

INTELLECTUAL PROPERTY APPELLATE BOARD-The applicants did not admit the deed of assignment. The Counsel did not admit the E-mail message as it was not admissible under the Evidence Act. The Counsel relied on few judgments. 21. In reply, the learned Counsel for the respondent submitted that the respondent company was incorporated in the year 1972 and there was a change in the year 1977. The applicant company allowed the respondent to carry on the business under the trade mark “ZANDER”. It is clear that with the knowledge of the applicant the respondent applied for and obtained the registration. In the year 1999 itself the applicant was aware of the respondent’s registration. The applicant had allowed the respondent to carry on the business using the trade mark. The applicants have admitted that they had been carrying on business in India in the year 1986 through the respondent who had used the trade mark. The respondents had sold the goods manufactured by the applicants under the trade mark “ZANDER” and the goods manufactured by them under the trade mark “NUCON ZANDER”. 22. The application is for rectification of the trade mark “ZANDER” under No.468987 in Class 11. We have to test if the applicant is a person aggrieved to file this application for rectification. The applicants were selling the goods in India since 1986 and thereafter a collaboration agreement was entered into between the applicant and the respondents to form a joint venture company known as “Nucon Zander India Private Limited”. On perusal of this agreement – Annexure ‘A5’ does not mention the trade mark or its use. It is also the applicant’s statement in para 5 of the application – “……..Moreover, some products were manufactured locally by the Joint Venture Company by using the technology acquired from the Applicant Company and these products were sold in Indian market under the brand name “Nucon Zander”. The Joint Venture Company continued to sell the goods of the Applicant Company under the trade mark “Zander” and the locally manufactured goods under the trade mark “Nucon Zander” in India as its agent/distributor/licencee under the various agreements referred to above. Specimen brochures as used by the Joint Venture Company for sale of “Zander” products are annexed hereto……” 23. From the above statement it is clear that the respondent was carrying on business under the trade mark “ZANDER” with the applicant’s knowledge. In such case, we do not think the applicant is injured or damaged by the respondents trade mark. The present application for rectification has been filed only as a counter blast to the suit filed by the respondent. 24. The grounds on which the rectification application is filed is that the registration has been allowed by misstatement, the registration would cause irreparable damage to the applicant, registration has been obtained by fraud and the registration would cause confusion and deception in the minds of the public. 25. The onus is always on the applicant to satisfy as to confusion and whatever has been pleaded as grounds for rectification. As regards the grounds of fraud and misstatement the applicant has not placed any documentary proof in support thereof. As regards confusion and deception, the applicant has not filed any evidence as it is an admitted fact that the respondents have been selling the goods under the trade mark “ZANDER”. The applicant’s goods are not available in the market. So the possibility of confusion and deception does not arise. 26. The mark has been applied for registration on 10.3.1987 claiming user since 1986 and the mark was registered on 31.01.1990. The mark has been in the register for more than a decade. The applicants were aware of the respondent’s registration in 1990, as seen from the letter dated 27.9.1997 or at least from 1999. The mark has been put to use since 1986 and registration obtained in 1990. The application for rectification has been filed in 2006. The applicant having allowed the respondent to grow in strength for 16 years cannot now restrain them. We think it not fit to remove the trade mark, which had been in the register for more than a decade. 27. The rectification application ORA/106/2006/TM/CH is accordingly dismissed with costs of Rs.5,000/-.

INTELLECTUAL PROPERTYAPPELLATE BOARD Guna Complex Annexe-I, 2nd Floor, 443, Anna Salai, Teynampet, Chennai-600018     ORA/106/2006/TM/CH                                                                                   FRIDAY, THIS THE 20th DAY OF JANUARY, 2012   Hon’ble Smt. Justice Prabha Sridevan                    …  Chairman Hon’ble Ms.S. Usha                                                       …  Vice-Chairman     ZANDER AUFBEREITUNGSTECHNIK GMBH & CO. KG IM TEELBRUCH 118 D-45219 ESSEN (KETTWIG) … Continue reading

The respondent has obtained registration of the impugned trade mark KYK which is an identical and deceptively similar trade mark to that of the applicant’s well known and reputed trade mark KYK. The respondents have filed a suit against the applicant for injunction restraining the applicants from infringing the respondent’s registered trade mark. The registration of the impugned trade mark are being obtained by playing fraud upon the Registrar of Trade Marks. The respondents claim use since 10.10.1996 in respect of parts and fittings in Class 12 and as regards goods in respect of bearings, filters, gear and gear parts falling in Class 7 since 10.4.2000. It is however submitted that the applicants trade mark was bonafidely adopted by the applicant as back as in year 1952. The adoption of the impugned trade mark by the respondents is absolutely dishonest, malafide and in bad faith and is in contravention of the provisions of the Act. Any use by the respondent therefore is void ab initio and no use in the eyes of law. = The two original rectification applications have been filed by the applicants being aggrieved by the Civil Suit filed by the respondents before the Hon’ble High Court of Delhi. The applicants have the locus to file and maintain the application for rectification. The marks are identical and are used in respect of identical goods. By the impugned registration, the applicant is likely to be injured or damaged in some way or the other. 26. The other issue is regarding the proprietorship of the trade mark “KYK”. The respondents have not placed before us any record or documents to say that V.K. Automobiles is also the proprietor of the trade mark. The Civil Suit has been filed by V.K. Automobiles and M/s. KYK International. The first application under No.949032 filed on 21.8.2000 has been filed by KYK Bearing International. On 25.8.2000, KYK Bearing International has assigned the trade mark in favour of V.K. Automobiles. If that is the case then how is it the application under No.1291522 on 21.6.2004 has been filed by KYK International. There is nothing on record to say if there had been any partial assignment. That apart the respondents claims user since 1996 as regards Class 12 application and 2000 as regards Class 7 application. When the mark was assigned to V.K. Automobiles in the year 2000 then the 1st bill dated 1999 in the name of V.K. Automobiles cannot be taken note of for deciding this case as it is not clear as to the proprietor. The respondent thus cannot be the proprietor of the trade mark and the registration is therefore in contravention of Section 18 of the Act. 27. The other issue is regarding the user claimed by the respondents in their application for registration. The respondents claim user since 1996 and 2000 in their application. There is no evidence prior to 2005. It is also the case of the respondent that the manufacturing of bearings were carried out through one M/s. Techno Mark Grindwell Industries. The 1st invoice is dated 2005 by M/s. Techno Mark Grindwell Industries. The respondents have not proved their user as claimed. 28. The respondents have claimed user since 10.10.1996 for Class 12 goods and 10.4.2000 for Class 7 goods. The respondent’s contention is that they had been dealing through one M/s. Techno Mark Grindwell Industries. It is not clear as to how long they were carrying on business through M/s. Techno Mark Grindwell Industries. As stated earlier 1st invoice is of the year 2005. In the absence of any documents either from 1996 or at least from 2000 the claim of user before the Registrar is wrong statement for which reason the mark cannot be allowed to continue on the Register. 29. As held earlier, the respondents having not given any cogent evidence to prove their user since the date as claimed in their application for registration, we do not think it correct to allow the mark to continue on the register. 30. The judgments relied on by both the parties are not dealt into as it will only multiply authorities. 31. For the reasons stated above, the impugned trade marks registered under Nos.1291522 and 949032 in Class 7 and 12 respectively are cancelled with a direction to the Registrar of Trade Marks. No order as to costs. Miscellaneous Petitions are closed.

INTELLECTUAL PROPERTY APPELLATE BOARD Guna Complex Annexe-I, 2nd Floor, 443, Anna Salai, Teynampet, Chennai-600018   CIRCUIT BENCH SITTING AT DELHI   M.P. No.249/2009 in ORA/220/2009/TM/DEL & ORA/220/2009/TM/DEL   FRIDAY, THIS THE 10th DAY OF FEBRUARY, 2012   Hon’ble Smt. Justice Prabha Sridevan                     …   Chairman Hon’ble Ms.S. Usha                                                         …  Vice-Chairman   KYK Corporation Ltd.                                               … Continue reading

INTELLECTUAL PROPERTY APPELLATE BOARD=This is an appeal under section 91 of the Trade Marks Act, 1999 (hereinafter referred to as the Act) directed against the order dated 1.5.2006 passed by the Senior Examiner of Trade Marks whereby the application for registration of Trade Mark “OFLEX” has been refused.=After having perused the documents, we are in agreement with the observation made by the Senior Examiner of Trade Marks that the opponents and applicant both have filed half hearted evidences not bothering seriously, the concern. But certainly the onus is more upon applicants to show that they have right of registration and hence applicants stand to loose if evidence of applicant does not over weigh against evidence of opponents, the registered owner of conflicting mark. The appellant has failed to establish it use of the mark since 4.1.2000. The appellant has on the basis of available documents on our record has proved the user only since 9.4.2002. We, therefore, see no reason to interfere with the conclusion arrived at by the Senior Examiner of Trade Marks.

Mr. Vikash Rajgarhia v. Aristo Pharmaceuticals Limited – OA/51/2006/TM/AMD [2008] INIPAB 2 (19 March 2008) INTELLECTUAL PROPERTY APPELLATE BOARD Guna Complex, Annexe-1, 2nd Floor, 443 Anna Salai, Teynampet, Chennai – 600018   (Circuit Bench at Ahmedabad)   OA/51/2006/TM/AMD     WEDNESDAY, THIS THE 19TH DAY OF MARCH, 2008       Hon’ble Shri Z.S. Negi … Vice-Chairman … Continue reading

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