T VARADARAJ PAI Vs. KIRAN KUMAR

JUDGEMENT

(1.) The order of the Intellectual Property Appellate Board (hereinafter referred to as the 'Appellate Board') dated 4.7.2013 (Annexure-P) is assailed in this Writ Petition. Brief facts of the case are that, the petitioner herein, claiming to be manufacturing malt and other products under the trade name "Sri Raghavendra Malt", had sought permanent Registration Certificate from the District Industry Center in the year 1989. The petitioner claims that he had been using and selling malt and other products under the trade name "Sri Raghavendra Malt" without any interruption. He has filed an application for registration of the trade mark, which is pending. When the matter stood thus, the respondent had issued a legal notice and has also filed a suit in O.S.No. 1/2007, which is pending 3 adjudication before the District Court, Udupi. The petitioner had made an application for removal of trade mark "Raghavendra Malt", registered under No. 1266408 in Class 31 in the name of the respondent. The Appellate Board, after considering the evidence of the parties and also the evidence of two other witnesses, has declined to cancel the registered trade mark and has dismissed the application. Being aggrieved by the said order, this Writ Petition has been preferred.

(2.) We have heard the learned counsel for the petitioner and perused the material on record.

(3.) The main contention urged on behalf of the petitioner is that, the respondent has deposed in his affidavit that he has been using the trade mark only since the year 1994-95 and not since the year 1981 and, therefore, the Appellate Board was not right in concluding that the respondent was a prior user. Learned counsel for the petitioner drew our attention to the depositions in support of the respondent and contended that there is a contradiction in the said 4 depositions and that the Appellate Board ought not to have relied on the said depositions when the same were not made part of the record in O.S. No. 1/2007 by the respondent. He, therefore, contended that the order of the Appellate Board requires interference.