FLOWER TOBACCO COMPANY Vs. AMBAR TOBACCO COMPANY

JUDGEMENT

(1.) This is a second appeal filed under Section 109(5) of the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as "the Act") seeking to challenge the order passed by learned Single Judge in appeal preferred under sub-section (3) of Section 109 of the Act against the order passed by Deputy Registrar of Trade Marks, New Delhi on 31.12.1981 in opposition proceedings DEL-3009.

(2.) Facts in brief are that the application bearing No.339005 was filed by the appellant to register a Trade Mark (Label) in class 34 consisting inter alia, the a device of coffee pot and the words "Abbu Dalla" in Arabic characters in respect of the specification of goods, which on subsequent amendment reads as "Tobacco for Hooka for export only". This application was under objection on the ground of conflict with some mark on the Register and another application pending consideration before the Trade Mark Registrar, Application was advertised on 16.7.1979 and on 1.8.1979 respondent lodged opposition to the registration of the Trade Mark, inter alia, on the following grounds--

(3.) Evidence in support of the opposition was filed by the respondent and evidence/in support of the application was filed by the appellant. Case was posted for hearing on 20.5.1981. Nobody appeared for the opponents on 20.5.1981 Two advocates appeared on behalf of the appellant. After some arguments the case was adjourned to 21.5.1981. On 21.5.1981 Shri K.C.Kareer, Trade Mark Attorney appeared for the opponents and two advocates appeared for the applicant. Copy of the order of Deputy Registrar of Trade Marks reveal that after some discussion at the resumed hearing, Trade mark Attorney of the opponents desired to withdraw the opposition on the appellant's counsel agreeing to waive the costs. The order further reveals that upon this the appellant's counsel agreed to waive the costs. Accordingly the opposition of the respondent was, treated as withdrawn with no order as to costs and consequently registration was issued in favour of the appellant.