JABBAR AHMED Vs. PRINCE INDUSTRIES

JUDGEMENT

(1.) This appeal is directed against the order of the Registrar Trade Mark dated 23.10.2000, by which an application for rectification moved on behalf of M/s Prince Industries-Respondent herein has been allowed and the trade mark 444393 in Class 8 registered for the product of the appellant has been ordered to be rectified and expunged from the Register Trade Marks.

(2.) Briefly stated the relevant facts giving rise to the present appeal are that the above named appellant was the registered proprietor of the trade mark "BELL" registered under Registration No. 444393 in Class 8, having been registered on 16.10.85. The respondent No. 1 filed a rectification petition numbering DEL-686 before the trade mark Registry alleging, inter alia that the registration has been procured by playing fraud, suppressing material facts as also on the ground that respondent No. 1 had been using the mark "BELL" since 1962 and that the appellant had not used the mark "BELL" in relation to the goods to which the mark was applied. It was also alleged in the rectification application that the mark "BELL" had become common to the trade as more than three persons were openly and continuously using the impugned trade mark in Meerut. The said application was allowed and rectification and expunction of the said trade mark ordered by the Assistant Registrar of trade mark primarily on the finding that necessary conditions set out in Section 56(2) of the Act stands established and proved by the respondent and it was in the interest of purity of the Registrar that the entry was expunged and Register rectified.

(3.) The findings and orders of the Assistant Registrar trade mark are sought to be assailed inter alia on the grounds that the appellant trading as M/s Diana Industries, 209, Lisari Road, Meerut had been using the trade mark "BELL" in respect of the nail cutters manufactured by him since April, 1976, got it registered in 1985 and renewed from time to time and the rectification application was filed simply as a counter blast and dilatory tactics to slow down the proceedings in the Suit No. 2 of 1994 pending in the Court of District Judge, Meerut, wherein the appellant sought to restrain infringement of their registered trade mark by the respondent; there is a mistake apparent on the face of the record as the Registrar failed to appreciate that in a rectification proceeding, the onus lies on the applicant for rectification to satisfy by cogent evidence that the mark registered was wrongly registered or wrongly remained on the Register, or was registered without any sufficient cause. The impugned order is also sought to be challenged on the grounds that the Registrar failed to take into consideration certain relevant factors while examining the evidence of the respondent in the rectification proceedings. It is also alleged that the Assistant Registrar has erroneously held that the respondent had used the mark "BELL" for a continuous period since 1962, simply on the strength of the pleadings in Suit No. 2/94 before the District Judge Meerut without there being any cogent evidence on record. Alternatively it is pleaded that assuming that the respondent had used the trade mark "BELL" in 1962 there was no evidence of continuity of user or any user whatsoever during the period, the appellant adopted the said trade mark and, therefore, the provisions of Section 11(a) of the Act had been wrongly applied. Similarly it is contended that the Assistant Registrar had erred in expunging the trade mark of the Registered proprietor which had been on the register for more than a decade and has failed to consider the conclusive nature and effect of the Registration of the trade mark as envisaged by Section 32 of the Act.