applicant company

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INTELLECTUAL PROPERTY APPELLATE BOARD=In these circumstances, the registrations in her name deserve to be removed. It appears that the division of property between the estranged couple is under consideration before the matrimonial Court, at that time the rights to the intellectual property in these trade marks may also be decided. The Civil Court has directed the Registrar of Trademarks to maintain a status quo, the respondent apprehended that blank papers signed by her may be misused by her husband Mr. Matang Sinh. That is to restrain the Registrar from effecting any change of name. But this status quo cannot stand in the way of our deciding these rectification applications which have been filed in accordance with law. 16. For all the aforesaid reasons, the rectification applications ORA/64/2009/TM/DEL and ORA/65/2009/TM/DEL are allowed with a direction to the Registrar of Trade Marks to remove the trade marks registered under Nos.1239523 and 1239515 in Class 41 and Class 38 respectively from the register of Trade Marks. All 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.51/2009 IN ORA/64/2009/TM/DEL & ORA/64/2009/TM/DEL AND M.P. No.52/2009 IN ORA/65/2009/TM/DEL & ORA/65/2009/TM/DEL      FRIDAY, THIS THE 9th DAY OF  MARCH, 2012   Hon’ble Smt. Justice Prabha Sridevan            … 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

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