SH. TIKKAM CHAND & ANOTHER Vs. ASSISTANT REGISTRAR OF TRADE MARKS TRADE MARKS REGISTRY NEW DELHI & OTHERS

JUDGEMENT

(1.) THIS appeal is against the order referring to register the mark GUTKA in favour of the appellant herein. The Registry cancelled the advertisement of the mark and the application was rejected on the ground that GUTKA could not be registered as a trade mark.

(2.) THE learned counsel for the appellant submitted that the application was in the year of 1984 and therefore one must put oneself back in time and decide the matter accordingly. The learned counsel submitted that it is only on being satisfied that the mark was registerable that it was directed to be advertised and thereafter it is not open to the succeeding registrar to take a different view. The learned counsel submitted that the mark had acquired distinctiveness. The Registrar could not have given a finding that it was generic based on the probability, it should be a concrete finding of fact, that the evidence based on which the registration was removed must be considered evidence. According to him u/s 19 of the Trade and Merchandise Marks Act, 1958 (Act in short) there is no occasion for any objector to invoke the jurisdiction of the Registrar. The matter was solely between the Registrar and applicant and no objector should have been heard.

(3.) THE learned counsel made elaborate arguments with regard to the mark GUTKA, however, we find that many of these issues had attained finality by the order of the Hon'ble Delhi High Court in C.M. NO.103/1998 dated 23rd July, 1998. The same appellant was the writ petitioner therein. He challenged the issuance of the letter dated 21.10.1997 whereby a show cause notice was issued u/s 18(4) & 19 of the Act.