GOPAL KISHAN Vs. UNION OF INDIA & ANR

JUDGEMENT

(1.) On 6.9.1961, the respondent no.2 before this Court sought registration of a trademark consisting of the word "STANDARD" and a device. At the time of seeking registration, the respondent no.2 did not claim any prior use of the aforesaid mark. The case of the appellant is that the said application was not pursued and on 2.12.1975, respondent no.2 submitted another application for registration of the mark consisting of the letter "S" inside a triangle and the word "STANDARD" above the triangle and the word "India" below the triangle. This time, respondent no.2 claimed use since prior 1967 and the mark came to be registered vide registration number 310536. Three other registrations were thereafter obtained by the respondent no.2 in respect of the marks which includes the word "STANDARD". On 31.3.2003, the appellant filed a petition seeking cancellation of the aforesaid marks registered in favour of the respondent no.2. Vide order dated 16.12.2010, the petition filed by the appellant was dismissed by the Intellectual Properties Appellate Board (IPAB). W.P(C) No.2589/2011 was then filed by the petitioner impugning the order passed by IPAB. The said writ petition having been dismissed vide order dated 8.10.2012, the appellant is before us by way of this appeal.

(2.) Three contentions have primarily raised by the learned counsel for the appellant before us. The first contention is that the marks registered in favour of respondent no.2 is liable to be removed in view of the provisions contained in Section 46(1)(b) of the Trademarks Act, 1958 which provides for taking a mark off the Register if up to a date one month before the date of application, a continuous period of five years from the date on which the trademark is actually entered in the Registry or longer had lapsed, during which the trademark was registered and during which there was no bonafide use of the trademark in relation to those goods or services by its proprietor.

(3.) As regards his contention with respect to the period of the user of the mark "STANDARD" by respondent No.2, the learned counsel for the appellant drew our attention to the application submitted by respondent No.2 on 6th September, 1961 seeking registration of the mark constituting the word "STANDARD" and a device, where respondent No.2 stated that it proposed to use the mark in respect of which registration was being sought.