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INTELLECTUAL PROPERTY APPELLATE BOARD The rectification is for removal of mark No. 235004 in Class 34 Label mark NONI. The applicant is the owner of the mark NOVA which was adopted in the year 1935. According to him, NONI will result in confusion and it is not entitled to be registered. 7. We are not going into other allegations and counter allegations made by the two parties. It is indisputable that this mark has been in existence from 1968 at least. The invoices only referred to sale of NONI. But anyway, the invoices will not carry label mark. The caution notice and the advertisement which we have referred to also show this continued existence. Though the get up is visually similar and the goods are the same; in view of the fact that the respondent’s mark has been alive for nearly 5 decades, we are not inclined to remove the mark. 9. Both of them have been marketing their goods in the state of Maharashtra. 10. In fact the evidence shows that the applicant had not been marketing the goods for some years, and there is even an advertisement claiming “ We are back”. 11. The applicant cannot seek rectification by baldly claiming that they knew the existence of the mark only in 2007. There is no proof of confusion. These are special circumstances for us to allow the mark to continue. ORA is dismissed.

INTELLECTUAL PROPERTY APPELLATE BOARD Guna Complex Annexe-I, 2nd Floor, 443 Anna Salai,  Teynampet, Chennai-600018 *****   (CIRCUIT BENCH SITTING AT MUMBAI)   ORA/216/2007/TM/MUM                                                                           FRIDAY THIS  THE 4th DAY  OF  MAY,  2012     HON’BLE SMT. JUSTICE PRABHA SRIDEVAN                …  CHAIRMAN HON’BLE MS. S. USHA                                                           …  VICE CHAIRMAN Dr. Ashok Madhusudhan Bhat NNOVA and Company 104, … Continue reading

INTELLECTUAL PROPERTY APPELLATE BOARD All these rectification applications have been filed against the registration of the mark XTRONG bearing No: 1014962 in class 9. All the applicants have the same grievance against the mark. The pleadings are almost the same. The evidence in ORA/3/2007/TM/AMD is taken as the basis. Since the issue to be decided is one and the same, a common order is passed. 2. The applicant’s case is that the mark is an abbreviation of the words extra strong. The glass manufacturers have been using the word XTRONG or XSTRONG to describe the joints of flanges and on all ends of glass equipments. Extra strong is the only way to describe the product, so a misspelling of the word would still be a descriptive word. No one can claim monopoly over it. The respondent is a dishonest user of the mark. The respondent has claimed user from 31-12-1989. Even prior to that date this word has been used by glass manufacturers to describe the strength of the joints. It is commonly used. The respondent has filed a suit against the applicant in ORA 10/2007/TM/AMD in Vadodra. No single person can claim an exclusive right over a non-distinctive descriptive mark. The mark is not registrable under Ss.9(1)(a)(b)&(c), 2(a),18(1) 36 , and 57 (2) of the Act. 17. The applicant in ORA 10/2007/TM/CH alone was sued by the respondent, but all the other applicants have with justification filed these petitions under S.57(2) , since this mark shall not remain in the register. The Hon’ble Supreme court has held in Infosys case 2011(1)SCC 125 that the word person aggrieved has a wider connotation in S 57. There public interest is involved. No one can obtain registration of a mark which is purely descriptive and non-distinctive. 18. The fact that so many rectification proceedings have been filed only goes to prove the case of the applicants that they are all affected by the registration of a word which is common in the industry. Everyone has been using the word XTRONG for a long time continuously. In fact the respondent himself says he is a concurrent user, which means that he admits that at least one person if not more is using the mark and he is using it concurrently. This too disentitles him from claiming exclusivity to an ordinary descriptive word. 19. For all these reasons the mark shall be removed from the register. The ORAs are allowed with costs of Rs 2000 each. The miscellaneous petitions stand closed.

INTELLECTUAL PROPERTY APPELLATE BOARD Guna Complex, Annexe-l, 2nd floor, 443, Anna Salai, Teynampet,  Chennai 600 018 (Circuit Bench Sitting at Ahmedabad)   M.P.Nos. 181 to 190/2011 IN ORA/3 to 12/2007/TM/AMD AND ORA/3 to 12/2007/TM/AMD WEDNESDAY, THIS THE 28TH DAY OF DECEMBER, 2011   HON’BLE Smt. JUSTICE PRABHA SRIDEVAN                        …     CHAIRMAN HON’BLE Ms. S. USHA                                                  … Continue reading

INTELLECTUAL PROPERTY APPELLATE BOARD This Appeal arises out of the order dated 30.09.2006 refusing the application for registration and the opposition under No. 172888 in Class 9. The appellants herein filed an application for registration of the Trade Mark CAP CAB on 03.11.2000 in Class 9 under No. 967948 claiming user since 01.04.1986 in respect of various kinds of electrical wires and cables. The said application was advertised before acceptance in the Trade Mark Journal MEGA – 6 dated 25.11.2003 at page 3580 under the provisions of the Trade Marks Act, 1999 (hereinafter referred to as the Act). The respondent herein filed their notice of opposition opposing the registration on the ground that they are the Registered Proprietors of the Trade Mark CAP CAB under No. 750328 in Class 17 as of 03.01.1997. The respondent had also filed an application under No. 750328 in Class 17 which is under opposition. The respondent’s main contention was that they had adopted the Trade mark as early as 1981 and had been using the same continuously and extensively since then. =23. On perusal of the records, it is seen that both the appellants and the respondents are carrying on a business of similar goods with identical marks. In the case of deciding the issue of deceptive similarity, the class of customers are to be considered. The class of customers here would belong to all categories. In such circumstances, we will have to consider the priority in use. Though the respondents claim user since 1981, their documents are only of the year 1990 whereas the appellants documents are from the year 1986. The public who are aware of the appellants goods since 1986 are likely to associate the goods only with that of the appellants goods. There is no doubt the onus is always on the appellant / applicant to prove that there has been no instance of confusion in the market. The appellant being prior in use, if at all there is confusion it will only be because of the respondent’s goods. The onus, therefore now shifts on the respondent to prove confusion, which has not been satisfied. We, therefore, do not think there is any valid reason to refuse the application for registration. 24. For the above mentioned reasons, the appeal is allowed and the application for registration of the trade mark CAP CAB under No. 967948 in Class 9 is allowed to proceed for registration. No order as to costs. In view of the fact that the appeal has been disposed off, nothing survives in the Miscellaneous Petition.

INTELLECTUAL PROPERTY APPELLATEBOARD Guna Complex Annexe-I, 2nd Floor, 443 Anna Salai,  Teynampet, Chennai-600018                                             ***** (CIRCUIT BENCH SITTING AT DELHI)   M.P.No.280/2007 IN  OA/08/2007/ TM/DEL AND OA/08/2007/TM/DEL   WEDNESDAY THIS THE 28th DAY OF DECEMBER,  2011   HON’BLE SMT.JUSTICE PRABHA SRIDEVAN                …  CHAIRMAN HON’BLE MS. S. USHA                                                      …  VICE CHAIRMAN   Shri Rajnish Kohli, S/o Shri … Continue reading

Thus, it is clear that the act of not supplying statement of accounts for each FD account to the Complainants and the act of not releasing the amount held (without revealing any details) by the bank as alleged security, clearly amounts to deficiency in service. We therefore agree with the State Commission that the Complainants are entitled to refund of the said amounts. 12. In our considered view, the entire proceedings before the State Commission, and in the present appeal before this Commission, could have been avoided, had the appellant furnished the accounts to the complainants. Their failure has subjected the complainants to very unnecessary and avoidable litigation. Therefore, compensation of Rs.50,000/-, awarded in the impugned order, is considered fully justified.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION                                                NEW DELHI                                                 FIRST APPEAL NO. 16 OF 2012 (Against the order dated 16.12.2011 in Consumer Complaint No.40 of 2011 of the State Commission, UT Chandigarh) Union Bank of India SCO-802, N.A.C., Mani Mazra Chandigarh                                                                                        ……….Appellant Versus   1. Manoj Gupta 2. Vipin Gupta   Both sons of late Shri A.L. Gupta Both house No.1664, Mani Mazra Chandigarh                                                                                               ………Respondents   … Continue reading

INTELLECTUAL PROPERTY APPELLATE BOARD A.I.R. 1955 SC 558 – Registrar of Trade Marks, Appellant v. Ashok Chandra Rakhit Ltd., Respondent which is the same as the case relating to the word “Shree”. 24. We have given our reasons above why we cannot allow the marks in question to proceed to registration. 25. To summarise – (a) The words are common to the trade as proved by the respondents’ evidence; (b) The user of the mark has not been proved, the appellant’s user is for “Brooke Bond Red Label” and not “Red Label” as a stand alone mark; (c) The metamorphosis of the original mark where “Brooke Bond” was prominent to the present one where “Brooke Bond” is cast to the sidelines is a factor against the appellant; the fact that in trade mark application 453651 there is the monogram ‘RL’ does not make a difference. ‘RL’ is not prominent and the impression one gets as a whole is only of the words “Red Label”. (d) The mark “Red Label” is not distinctive; (e) The earlier registrations had conditions imposed that there shall be no exclusivity to the words “Red Label”. In spite of that for reasons best known to the appellant, repeated applications are filed. 26. In the result, the appeals are dismissed with costs of Rs.10,000/- each. All Miscellaneous Petitions closed.

INTELLECTUAL PROPERTY APPELLATEBOARD Guna Complex Annexe-I, 2nd Floor, 443, Anna Salai, Teynampet, Chennai-600018                 TA/47/2003/TM/CH, OA/34/2004/TM/CH, OA/69/2004/TM/CH        MONDAY, THIS THE  2nd DAY OF JANUARY, 2012   Hon’ble Smt. Justice Prabha Sridevan                   …  Chairman Hon’ble Ms. S. Usha                                                     …  Vice-Chairman     M/s. Hindustan Unilever Limited Brooke Fields, Marathahalli P.O., Bangalore-560037.                                                  … Continue reading

INTELLECTUAL PROPERTY APPELLATE BOARD =17. The Registrar had also held in the order that it appears that there was no practical dissolution of the firm by the deed of dissolution. The dispute has been solved by the Arbitrators and an award had been passed by which the trade mark was to be used. The opponent i.e. the appellant has not proved his case for rejecting the application for registration. The appellant having allowed the respondent to use the trade mark cannot now object to the same. Both had been carrying on business within the reach of the other. The marks are not similar in our opinion. The Registrar has therefore allowed the registration confining the sale to the State of Jharkhand.

INTELLECTUAL PROPERTY APPELLATEBOARD Guna Complex Annexe-I, 2nd Floor, 443 Anna Salai, Teynampet, Chennai-600018                                                                                                                    ***** (Circuit Bench at Kolkata)   OA/33 and 41/2007/TM/KOL   FRIDAY, THIS THE 6TH DAY OF JANUARY, 2012   HON’BLE SMT. JUSTICE PRABHA SRIDEVAN          …  CHAIRMAN HON’BLE MS. S. USHA                                                       …  VICE-CHAIRMAN M/s Anuradha, 16 Rathore Mansion, Bank More, Dhanbad – 826 … Continue reading

INTELLECTUAL PROPERTY APPELLATE BOARD =11. We have heard and considered the arguments of both the Counsel and have gone through the pleadings and arguments. The marks namely PLAX and CLAX are not similar in our opinion. The goods for which the trade marks are used are different. The appellant’s goods are chewing gum and lozenges for medical purposes, dental preparations (medical), Denture cleaners, Denture (additives). The respondent’s goods are antibiotics for curing dental infections and tooth extraction.

INTELLECTUAL PROPERTY APPELLATEBOARD Guna Complex Annexe-I, 2nd Floor, 443, Anna Salai, Teynampet, Chennai-600018   CIRCUIT BENCH SITTING AT AHMEDABAD   OA/28/2007/TM/AMD                                                                                FRIDAY, THIS THE 20th DAY OF JANUARY, 2012     Hon’ble Smt. Justice Prabha Sridevan                    …  Chairman Hon’ble Ms.S. Usha                                                       …  Vice-Chairman   Colgate-Palmolive Company, a Company Incorporated and existing … Continue reading

INTELLECTUAL PROPERTY APPELLATE BOARD =“A question of law then arises, which may be stated shortly as follows: – Can a man properly register a Trade Mark for goods in which he does not deal, or intend to deal – meaning by intending to deal, having at the time of registration some definite and present intention to deal in certain goods or descriptions of goods, and not a mere general intention to extending his business at some future time to anything which he may think desirable? This question we answer in the negative. To answer it otherwise would be unduly to strain the language of the Acts relating to Trade Marks, and to render those Acts extremely mischievous, instead of beneficial to trade and commerce”. =16. The Deputy Registrar was not justified in dismissing the opposition. In fact when the appellant in his opposition had specifically raised the ground of non user, the Deputy Registrar has not dealt with this objection and had instead taken up the other objections and rejected. The respondent has claimed user from 1987. But there is no evidence to prove this user. The evidence of user is only for electrical goods and nothing else. The appellants have proved user from 1987 which we have already referred to. The appellant’s mark was registered and a certificate was granted in 1998. The respondent is therefore clearly neither prior user nor is the respondent’s registration earlier to the appellant. This fact has also been unnoticed by the Registrar. But more specifically the fact that the respondents has never used the mark is the crucial one. To use the words in the Batt & Co. judgment, In the matter of the Registered Trade Marks Nos.27,850 and 72,790 of J. Batt and Co. (cited supra), registration obtained without any intention of dealing with those goods or description of goods definitely would instead of being in the interest of trade and commerce be positively prejudicial to public interest.

INTELLECTUAL PROPERTY APPELLATEBOARD Guna Complex Annexe-I, 2nd Floor, 443, Anna Salai, Teynampet, Chennai-600018   CIRCUIT BENCH SITTING AT DELHI   M.P.No.137/2010 IN OA/28/2010/TM/DEL AND OA/28/2010/TM/DEL            TUESDAY, THIS THE 31st DAY OF JANUARY, 2012 Hon’ble Smt. Justice Prabha Sridevan                   …  Chairman Hon’ble Ms.S. Usha                                                      …  Vice-Chairman    Nischal’s Klick Selections 15A/16, W.E.A.., … Continue reading

INTELLECTUAL PROPERTY APPELLATE BOARD =1. In these proceedings the appellant seeks to quash and to set aside the order of the then Assistant Registrar of Trade Marks refusing Application No. 1414802 in class 42 for registration in respect of a trade mark REAL PERSON CUSTOMER SERVICE filed by M/s. Network Solutions LLC, USA. The back ground of the case is mentioned below:- =matter remanded for fresh enquiry

INTELLECTUAL  PROPERTY   APPELLATE BOARD Guna Complex, Annexe-I, 2nd Floor, 443, Anna Salai, Teynampet, Chennai – 600 018   (Circuit Bench sitting at Delhi)   OA/40/2008/TM/DEL   TUESDAY, THIS THE  31st DAY OF JANUARY,  2012     Hon’ble Ms. S. USHA                                   — Vice-Chairman Hon’ble Shri V, RAVI                                     — Technical Member   M/s. NETWORK SOLUTIONS LLC … Continue reading

TRUST MEMBERS DISPUTES NO INTERIM ORDERS= we are not inclined to pass an order as pressed by the appellants to restrain the respondent No.1 from functioning as the Chairperson of the appellants’ trust due to the reasons that main appeal filed by the appellants for the same relief has already been dismissed by our judgment dated 20.02.2009. Coupled with the fact that since there are allegations from both sides against each other, same relief prayed in the appeal cannot be granted after disposal of the appeal or reconsidered on the basis of subsequent events. We feel, the said grievances may be raised before the learned Single Judge where the suit is pending and as per law, it is open to the parties to take the appropriate proceeding before the learned Single Judge on the basis of fresh material available who may decide the same, if any such application is filed, as per FAO (OS) No.380/2008 Page No.8 of 8 its merit. Permission is also granted to file fresh applications (on behalf of individuals) for the relief claimed in the pending applications before us. 13. As far as this matter is concerned, all pending applications are disposed of with these directions.

FAO (OS) No.380/2008 Page No.1 of 8 .* HIGH COURT OF DELHI: NEW DELHI Judgment pronounced on: 01.03.2012 + C.M. Appl. Nos.9494/2011, 17420/2011, 17421/2011 in FAO(OS) No.380/2008 DELHI MAHILA SAMAJ TRUST (REGD) & ANR. ….. Appellants Through Mr. Prashant Bhushan, Adv. with Mr. Rohit Kumar Singh, Adv. Versus MRS. RUMMA S. SUNDER & ANR. ….. … Continue reading

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