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The original rectification application is for the removal of the Trade Mark “Hans Smart” registered under No.763522 in Class 6 under the provisions of the Trade Marks Act, 1999. Ans :- Allowed = M/s. K.L. Steels Pvt. Ltd., Having its office at Z-18, Naraina New Delhi-110028. …Applicant (Represented by Shri Sri Sachin Gupta ) Vs. 1. M/s.Hans Metal Pvt. Ltd., 123/528-A, Factory Area, Fasal Ganj, Kanpur. 2. Registrar of Trade Marks, Trade Mark Registry, New Delhi. … Respondents published in http://www.ipab.tn.nic.in/207-2013.htm
The original rectification application is for the removal of the Trade Mark “Hans Smart” registered under No.763522 in Class 6 under the provisions of the Trade Marks Act, 1999. The applicants adopted and used the Trade Mark “Smart” since 01.04.1987. On account of extensive marketing and continuous use, the trade mark ‘Smart’ has acquired formidable … Continue reading
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 … Continue reading
Whether the registration is in contravention of the provisions of Sections 9 (1) (a) & 11 (1) (a) & (b) of the Act…..Ans:-No = M/s. Anuj Textiles Pvt. Limited, 8/5, Rup Chand Ray Street, Kolkatta – 700 001. …Applicant in all applications (Represented by Shri Debnath Ghosh & Gorgi Sen ) Vs. M/s. Anushree Textiles Pvt. Ltd., 14, Amratolla Street, Kolkata – 700 001. … Respondents in all applications (Represented by Shri Mittal Das Gupta) published in http://www.ipab.tn.nic.in/209-2013.htm
As per Section 21 of the Act any person may oppose an application for registration. As per Sections 47 and 57 of the Act, only a person aggrieved shall file an application for rectification. Whether the registration is in contravention of the provisions of Sections 9 (1) (a) & 11 (1) (a) & (b) … Continue reading
Revocation of patent rights granted on the ground of the combination is obvious, on the ground of violation of sec. 8 of Act = patent is for a fix combination of Bimatoprost and Timolol for treatment of treatment of ocular hypertension. = whether this combination was obvious in view of simultaneous (five minute gap) administration of these known drugs referred to as serial, adjunct or noncommittal or monothrapy. = “According to our Act, the patent is revoked if the invention is obvious. So the secondary considerations cannot change that.” Therefore the secondary objective evidence is not relenvant in determining non obviousmness as per law. ; violation of section 8 = In this case there is non compliance of section 8(2) as no information relating to prosecution of same application in other countries was provided even when the respondent agreed to do so as when it would be available vide letter dated 18th January 2005. A petition under Rule 137 for condonation of delay and irregulaty inrespect of ‘foreing filling particulars’ was filed on 18 January 2005. But the information relating to WO 2002096432, US 10/153,043 and EP 02739579.7 and Office action relating to US and EP application was not filed. USPTO rejections (claims 18-33 rejected) were dated 21.11.2003 very much before issue of FER on 21.09.2004. Similarly the US final rejection dated 12.10.2004 was also not furnished to IPO. EPO Examination report was available on 11.02.2005 and that was also not submitted. Even the International Serach Report in respect of WO /02/096432 which was available on 8th May 2003, very much before issue of FER, was not submitted to IPO. We are not looking at this moment why it was not given.But the fact remained that there was non compliance of Section 8. We have indicated the principles behind the S.8 objection, how it should be raised, defended and decided. The Act says failure to disclose the information required by S.8 is a ground for revocation. It does not qualify it by saying that the failure must be deliberate nor are there any words to indicate that the failure must be in regard to material particulars. In the present case the gound of the violation of section 8 has been clearly made out and we have no hesitation say applicant succeed on this ground of revocation. Withdrawing expert evidence is not fatal -Just because the Expert evidence in this case has been withdwrawn would not persude us to look away the prior art staeing at the impuned patent. We find on the facts of this, prior art documents in the form of patent document or non-patent literature filled by the applicant sufficient to decide the issue before us. Therefore this objection of the respondent is not maintainable. – Just because the Expert evidence in this case has been withdwrawn would not persude us to look away the prior art staeing at the impuned patent. We find on the facts of this, prior art documents in the form of patent document or non-patent literature filled by the applicant sufficient to decide the issue before us. Therefore this objection of the respondent is not maintainable. Law of Limitation Act nor applies =“The right to revoke patent any time after the grant of patent under section 64 cannot be extinguished after three years from the date of the publication of the grant by applying limitation of three years under Article 137 of the Limitation Act. This will run contrary to the scheme of the patent law. It is immaterial as to when the applicant for revocation came to know about the existence of patent or when the right to revoke the patent accrued. Thus the application for revocation can be filed before Appellate Board any time after the grant of a patent. This application is therefore not time barred’. This revocation application is not time barred.
published in http://www.ipab.tn.nic.in/172-2013.htm INTELLECTUAL PROPERTY APPELLATE BOARD Guna Complex Annexe-I, 2nd Floor, 443, Anna Salai, Teynampet, Chennai-600018 ORA/20/2011/PT/KOL AND M.P.NO.59/2011, 25, 63-64,129, 136-138/2012 & 14/2013 IN ORA/20/2011/PT/KOL THURSDAY, THIS THE 8TH DAY OF AUGUST, 2013 Hon’ble Smt. Justice Prabha Sridevan …Chairman Hon’ble Shri D.P.S. Parmar …Technical Member (Patents) Ajanta Pharma Limited, … Continue reading
This Revocation Application has been filed against the patent No.219504 “Combination of Brimonidine and Timolol” for topical Opthalmic use. The revocation is sought for on various grounds viz., that the Patent was obtained on a false suggestion or representation, that it is not an invention that it is obvious, that it does not sufficiently disclose and that Section 8 of the Patents Act, 1970 was violated.= As regards Section 3(e), according to the applicant it is merely an admixture and each drug provides the effect that any way individually it would do. We have already seen that the two drugs work in a different way in reducing IOP. The tests do not compare the composition with sequential combination as shown in Yuksel. The nearest prior art is the serial administration. A comparison with that would have shown if the improvement is only additive or more. That evidence is not before us. In view of our holding against the respondent on obviousness and S.8.Compliance it is not necessary for us to decide the 3(e) issue. 104. We have found the claimed invention as obvious. The BID administration was known and % / w of the drugs was also knownWe are not inclined to accept the amendments at this stage. =For the above reasons ORA/21/2011/PT/KOL is allowed and patent No.219504 is revoked. M.P. No.2/2012 is closed. As regards M.P. Nos.59/2012, 128/2012 and 134/2012 no orders are necessary. M.P. Nos. 60, 61, 72, 73, 127, 135/2012, 12/2013 and 15/2013 are allowed.
published in http://www.ipab.tn.nic.in/173-2013.htm INTELLECTUAL PROPERTY APPELLATE BOARD Guna Complex Annexe-I, 2nd Floor, 443, Anna Salai, Teynampet, Chennai-600 018 ORA/21/2011/PT/KOL AND M.P. NOS.60/2011, 2/2012, 59-61/2012, 72/2012, 73/2012, 127/2012, 128/2012, 134/2012, 135/2012, 12/2013 AND 15/2013 IN ORA/21/2011/PT/KOL THURSDAY, THIS THE 8TH DAY OF AUGUST , 2013 Hon’ble Smt. Justice Prabha Sridevan … Chairman Hon’ble Mr. D.P.S.Parmar … Continue reading
patent right granted was revoked = “Method for monitoring a Sensor”-” The Wind Turbine Components and Operation”=The applicant seeks revocation of the Patent No: 203552 for an Invention titled” Method for monitoring a Sensor.”= from the 1990s in India and elsewhere in the world there has been a spurt in wind energy activity. The 1990s were undoubtedly years of considerable change. The rated capacity of wind turbines was increasing rapidly, as was the size of wind farms. Wind speed cannot be controlled. It increases or decreases at will. That is why prediction of the wind speed and monitoring is required. We have already seen that ‘041 tells us that the blade pitch angle was known to be one of the parameters. If the pitch angle is not variable, then of course the anemometer can not use it to monitor the wind flow, But if the pitch angle can be varied and the wind speed is very high , what will the person skilled in the art who has common sense do? She will use the other known parameter that is the blade pitch angle and feather the blades. The answer it appears “is blowing’ in the wind”, it is obvious. 52. The proposed claim also speaks of detecting the flow speed, comparing it with at least one operating parameter and of the sequence the parameters. -Further all the features of the proposed claims are obvious as seen above. In the result, the patent No.IN203552 is revoked.
published in http://www.ipab.tn.nic.in/123-2013.htm INTELLECTUAL PROPERTY APPELLATE BOARD Guna Complex, Annexe-I, 2nd Floor, 443, Anna Salai, Teynampet, Chennai – 600 018 * * * * * * (CIRCUIT BENCH AT DELHI) ORA/08/2009/PT/CH AND Miscellaneous Petition Nos. 7/2010, 31/2010, 51/2011, 86/2012, 142/2012 & 143/2012 in ORA/08/2009/PT/CH WEDNESDAY THIS THE 12TH DAY OF JUNE, 2013 Hon’ble Smt. Justice … Continue reading
SALE OF PLEDGED SECURITES WITH OUT NOTICE UNDER SEC.176 OF CONTRACT ACT NOT VALID AND LIABLE TO PAY COMPENSATION = M/s.Green Gardens Private Limited entered into Facility Agreement dated 26.06.2008 with M/s.Indiabulls Housing Finance Limited to avail loan of Rs.240 Crores. The loan was secured by pledge of shares equivalent to 200% of the loan amount. M/s.Indiabulls Housing Finance Limited disbursed the loan of Rs.227.5 Crores against sanctioned loan of Rs.240 Crores. 3. Mrs.A.Indira Anand and Mrs.K.Bharathi executed Pledge Agreement in favour of M/s.Indiabulls Housing Finance Limited to pledge their shares as security for the loan advanced to M/s.Green Gardens Pvt. Ltd. Mr.A.Ravishankar Prasad and Mr.A.Manohar Prasad gave personal guarantee to secure the loan. Along with the Pledge Agreement, Mrs.A.Indira Anand and Mrs.K.Bharathi also executed irrevocable power of attorney in favour of M/s.Indiabulls Housing Finance Limited. Taking note of pledge creation forms executed by Mrs.A.Indira Anand and Mrs.K.Bharathi, M/s.Indiabulls Securities Limited recorded pledge of share in their record. 4. 11.07.2008, Mrs.Gemini Arts Pvt. Ltd., and M/s.Gemini Foundation Pvt. Ltd., also became co-borrowers along with M/s.Green Gardens Pvt. Ltd. On 30.09.2008, M/s.Indiabulls Housing Finance Limited issued a recall notice to the borrowers as well as to Mrs.A.Indira Anand and Mrs.K.Bharathi. 5. In response to the notice, M/s.Green Gardens Pvt. Ltd., repaid a sum of Rs.5,00,00,000/- (Rupees Five Crores only). However, on 12.11.2008, notice was issued to the borrowers informing that the cheques issued for Rs.2 Crores and Rs.3 Crores were returned unpaid. M/s.Indiabulls Housing Finance Limited invoked the pledge on 12.11.2008 and accordingly, pledged shares were transferred to the account of M/s.Indiabulls Housing Finance Limited in terms of Regulation 58(8) of SEBI Regulations, 1996. 6. On 18.11.2008, margin call notice was issued and on 02.12.2008, M/s.Indiabulls Securities Ltd., sold a part of the shares pledged on instruction of M/s.Indiabulls Housing Finance Limited. Being aggrieved by the action of M/s.Indiabulls Housing Finance Limited in invoking the pledge and sale of shares by M/s.Indisbulls Securities Ltd., Mrs.A.Indira Anand filed C.S.No.1172 of 2008 in this Court.= On a plain reading of Section 176 of the Contract Act, it is clear that before exercising the power of sale the pawner should give to the pledger reasonable notice of the sale (of the pledged thing) Section 176 is mandatory and even if there is a term in the contract of pledge to waive notice, still, the pledge is not relieved of his obligation to give notice before the sale of pledged articles.”= Section 176 of the Contract Act provides that if the pawner makes a default in payment of the debt in respect of which the goods were pledged, the pawner may bring a suit against the pawner upon the debt, or he may sell the thing pledged on giving the pawner reasonable notice or the same. The contention that notice of the contemplated sale to the pawner should be inferred from his letter dated 13-8-1948, cannot hold water inasmuch as the said letter does not disclose that a reasonable notice had been given by the pawnee to the pawner to sell the securities. A notice of the character contemplated by Section 176 cannot be implied. Such notice has to be clear and specific in language indicating the intention of the pawnee to dispose of the security. No such intention was disclosed by the Bank in any letter to the respondent.- I am, therefore, clearly of the opinion that the sale of the securities by the appellant Bank without reasonable notice to the respondent was bad and was not binding on hint. What is contemplated by Section 176 is not merely a notice but a ‘reasonable’ notice, meaning thereby a notice of intended sale of the security by the creditor within a certain date so as to afford an opportunity to the debtor to pay up the amount within the time mentioned in the notice. No such notice was ever given by the appellant to the respondent. There can thus he no escape from the conclusion that the sale of the securities by the appellant was against law and not binding on the respondent. The conclusion reached by the lower appellate court was, therefore, legally sound.”=the arbitral award can be set aside if it is contrary to (a) fundamental policy of Indian Law, (b) the interests of India; or (c) justice or morality. A narrower meaning to the expression ‘public policy’ was given therein by confining judicial review of the arbitral award only on the aforementioned three grounds REPORTED IN / PUBLISHED IN judis.nic.in/judis_chennai/filename=41781
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 30.04.2013 THE HONBLE MR. JUSTICE VINOD K.SHARMA O.P.Nos.228, 229, 258 and 272 of 2012 1. M/s.Indiabulls Housing Finance Limited *(previously known as Indiabulls Financial Services Limited) having its Registered Office at F-60, II Floor, Connaught Place, New Delhi-110 001. Rep. By its Authorized … Continue reading
whether the competing goods are different and whether the Registrar was right in refusing the appellant’s opposition. In deciding on this point the well settled law is to consider the nature of goods; its characteristic; its origin; the purpose; whether it is produced usually by one and the same manufacturer or distributed by the same wholesale houses; whether they are sold in the same shop over the same counter; during the same season and to the same class or classes of customers; whether they are regarded as belonging to the same trade etc. The Act uses the expression ”Similarity of goods or services” [S.11(a)]. The essential requirement is that there should be such similarity resulting in the likelihood of confusion on the part of the public. The question whether or not two sets of goods are of the same description is a question of fact and in deciding that question “one has to look at the trade” and must look at it from a practical business and commercial point of view. It is recognized that classification of goods and services is only an enabling tool for seeking registration and we can find many goods of same description in different classes as also goods of different description in the same class. In the instant case the competing marks are identical i.e. SONA. The rival goods are used by the common man. The perception of the mark in the mind of average consumer plays a decisive role. Here the appellant coined, adopted and started using SONA from 1975. The respondent was born some ten years later. Here it is layperson – illiterate, semi-literate, housewives, servants who will be buying both goods. Confusion as to the trade source is therefore inevitable. When the rival goods are used through the same trade channel and sold in the same shop over the same counter, many customers will wonder whether it might not be the case that the two products come from the same source. There is a real tangible danger if the impugned trade mark is put on the Register. The respondent started the use of the impugned trade mark in 1985 with an annual turnover of Rs.36,000/-. Upto 1995 their annual turnover was always less than one lakh rupees. On the other hand even before the respondent’s trade mark was born in 1985, the appellant annual turnover had reached Rs.36.0 lakhs. No wonder the appellant are greatly exercised. He is expanding and diversifying his business. The appellant have thus established by evidence filed before the Registrar and beyond any reasonable doubt, the civil standard of proof required to show that potential customers for the appellant’s goods will be misled into purchasing the respondent’s goods. In determining the likelihood of confusion because of similarity of goods, we are concerned with ordinary practical business probabilities having regard to all the circumstances. There is great affinity between the competing goods here. Since the practice of Registry is not to permit registration for a broad range of goods in a class, it then becomes its duty to ensure correct application of law in respect of subsequent identical mark for cognate class of goods. The Deputy Registrar had erred in applying the wrong test and permitted the registration of the impugned trade mark. His ruling that the rival goods are totally dim-similar is misconceived as the class of customers has been ignored. Similarity and confusion as to origin both largely are matters of fact and impression. The appellant have built a reasonable reputation for their trade mark SONA ten years before the respondent. In deciding such cases one has to think like a common man. That is the only correct test that can be sustained. The supreme test is the likely public confusion bench marking the level of education, class of customers at ground zero. 7. Accordingly, we set aside the order of the Deputy Registrar permitting registration of the impugned trade mark. OA/54/2005/TM/KOL is consequently allowed and the impugned trade mark “SONA” in class 30 is refused registration. There is 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 Kolkata) OA/54/2005/TM/KOL FRIDAY, THIS THE 8th DAY OF JUNE, 2012 HON’BLE SMT. JUSTICE PRABHA SRIDEVAN … CHAIRMAN HON’BLE SHRI V. RAVI … TECHNICAL MEMBER M/s Sona Spices Pvt. Ltd., 746, Industrial Area, Phase-11, … Continue reading
whether the impugned trade mark can continue to remain on the register when already a mark was on the registerThe respondent herein filed a Civil Suit against the applicant for infringement of the trade mark “CLAVMOX”. The applicant is the prior registered proprietor of the trade mark. Person who is in any way interested in having removed the mark and is in any way affected or damaged if the mark continued to remain on the register then that person is said to be a person aggrieved. In case on hand the applicant is the registered proprietor of the trade mark as of 1998. An identical trade mark if allowed to be registered subsequently would definitely cause damage and therefore the applicant is a “person aggrieved”.
INTELLECTUAL PROPERTY APPELLATE BOARD Guna Complex Annexe-I, 2nd Floor, 443, Anna Salai, Teynampet, Chennai-600018 (CIRCUIT SITTING AT AHMEDABAD) M.P. No.105/2010 in ORA/95/2010/TM/AMD AND ORA/95/2010/TM/AMD MONDAY, THIS THE 25th DAY OF JUNE, 2012 Hon’ble Ms.S. Usha … Vice Chairman Hon’ble Shri V. Ravi … Technical Member M/s. Cipla Ltd., … Continue reading
The opponent/appellant submitted they had been in the business of manufacturing and marketing of linear low density polyethylene and high density polyethylene resins are entirely different. The trade mark is derived from the corporate name and the combination of letter T with word TITANLENE which is structurally, visually and phonetically different to the opponent trade mark. The purchasing public of the rival marks are also different. The mark was applied for proposed to be used. On reply to this, the respondent submitted that they are the global proprietor of various trade mark containing the logo ‘T’ and Titan word like TITANEX, TITANPRO, TITANZEX, TITANCEED, etc. There is absolutely no similarity with the appellant mark. 3. The Registrar first took up the Section 9 objection and held that the unique combination of the different features of the mark should be taken into account and this mark is a composite mark containing letter ‘T’ in a logo form and word TITANLENE which is capable of distinguishing the goods of the respondent herein from the goods of the other traders. 4. Next the Registrar held that there was no evidence to show that the appellant herein using the mark in respect of the goods falling under Class 2. The Registrar relied on several judgments and held that there is no evidence of deception and confusion. The Registrar was also satisfied that the adoption was bonafide. The respondent has asserted his right to registration on the ground that the adoption is honest because T is the first letter of the name of its company and that the mark should be treated as composite mark and that there is no likelihood of confusion. The Registrar accepted this and ordered registration, we do not see any perversity in the order. We are not inclined to interfere with it. 15. The appeal is dismissed with costs of Rs.3000/-.
INTELLECTUAL PROPERTY APPELLATEBOARD Guna Complex Annexe-I, 2nd Floor, 443, Anna Salai, Teynampet, Chennai-600018 (CIRCUIT BENCH SITTING AT DELHI) OA/47/2007/TM/DEL FRIDAY, THIS THE 18TH DAY OF MAY, 2012 Hon’ble Smt. Justice Prabha Sridevan … Chairman Hon’ble Shri V. Ravi … Technical Member M/s. T.T. Industries, Through its Proprietor R.C. Jain. 879, Master … Continue reading
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