M/S VAGABOND SKOR VARBERG AB, (A COMPANY DULY REGD. UNDER THE LAWS OF SWEDEN) Vs. VAGABOND S.P.A., (AN ITALIAN CO.)

JUDGEMENT

(1.) THE applicants are seeking the removal of the registered trade mark No. 551738 in Class 25 of the respondent. The trade mark in question is VAGABOND. The grounds for seeking cancellation of the impugned mark is summarised below:

(2.) WE have gone through the records and the pleadings. This is a straight forward case by a genuinely aggrieved person. The well -known dictum is that if the applicant at the time of making the application had knowledge that the mark as applied for or a similar mark had already been used by another trader in relation to similar goods, then the claim to proprietorship made by him is false and fraudulent [See Gynomin (1961) RPC 408; Vitamin's Appln. (1956) RPC 1 and Brown Shoe's Appln. (1959) RPC -29]. The root of any trade mark application is an assertion under Section 18(1) "claiming to be the proprietor thereof" of the mark applied for.

(3.) THE Apex Court has held in "Milment Ortho Industries and Ors. Vs Allergan Inc." - 2004(28) PTC 585 SC that the mere fact that the party has not used the mark in India would be irrelevant if they were first in the world market. The applicants have used the trade mark outside India and have proved their intention to use in India by filing an application for registration. The applicant's use outside India is not in dispute.