OSRAM GESELLSCHAFT MIT BESCHRANKTER HAFTUNG Vs. SHYAM SUNDER

JUDGEMENT

(1.) From the admission made in the pleadings of the parties it appears that there are certain facts which are not in dispute, but those have a material bearing on the facts of this case and we think it would be convenient to refer them at once. First of this is that appellant/opponent is the registered proprietor of trade mark "OSRAM" in class 11 of Schedule IV of the Trade and Merchandise Act 1958 (hereinafter called the Act) in respect of electric lamps of all kinds and in class 10 in respect of surgical, medical, dental, veterinary instruments and apparatus and electric lamps. The respondent on the other hand is registered proprietor of the trade mark "OSHAM" in class 9 in respect of electric iron. He has also applied for registration of his trade mark "OSHAM" in class 7 in respect of mixer, juicer, grinder and washing machine. Since no opposition has been filed to the same and the period of opposition having expired he is expected to get the registration of his goods in class 7 also. The respondent applied for registration of its trade mark "OSHAM" in respect of portable lamp stands, room heaters, hot air circulator, domestic baking oven (electrical), fans and heating elements in class 11. Respondent had been using this trademark in respect of these goods since August,1980. The Registrar of Trade Marks advertised the application of the respondent to which the appellant herein indicated its intention to oppose the registration of the respondent's trade mark in class 11. Respondent subsequently filed an application before the Registrar of trade Marks seeking deletion of a portion of his application with reference to portable lamp stands which request was acceded to by the Registrar of Trade Marks and the application with reference to portable lamp stands was ordered to be deleted. Opposition of the appellant to the registration of trade mark "OSHAM" in class 11 of the goods of the respondent was rejected by the Assistant Registrar of the Trade Marks by his order dated 9/10/1996.

(2.) Aggrieved by that order the appellant preferred an appeal which was listed as Civil Misc. (Main) No.535/96. By the impugned judgment his appeal has also been dismissed.

(3.) Aggrieved by the order of the Assistant registrar and dismissal of his appeal by the learned Single Judge, appellant has preferred this appeal, inter alia, on the grounds that Assistant Registrar of Trade Marks as well as the learned Single Judge ignored that: