AJIT PRASAD JAIN Vs. AMAR CHEMICALS

JUDGEMENT

(1.) This is an application under Section 56 of the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as the Act). In this application it has been prayed that the Trade Mark No. 385890 be cancelled/ expunged from the Register of the Trade Marks.

(2.) Notice of this petition was issued to the respondents. Despite service the respondents did not appear and accordingly the respondent No. 1 was proceeded against ex-parte vide order dated 10th May, 1993. Learned Counsel for the petitioner submits that the respondent No. 2 is a proforma party. By the order dated 10th May, 1993, the petitioner was also directed to file evidence by way of affidavits within four weeks. The affidavit of Shri Ajit Prasad Jain, Sole Proprietor of the petitioner has been filed and the documents have also been exhibited.

(3.) Briefly stated the facts of the case are that the respondent No. 1 is the registered proprietor of Trade Mark No. 385890 dated 1st February, 1982 in respect of "Camphor" for sale in the states of Jammu & Kashmir, Punjab, Rajasthan,Uttar Pradesh and the Union Territory of Delhi, It has been alleged in the petition that on account of the aforesaid registration, the respondent No. 1 is threatening the trade including that of the petitioner about the use of LAKSHMI label Camphor. For this reason, the petitioner has filed the present petition, for rectification/cancellation of the above mentioned Trade Mark No. 385890 dated 1st February, 1982 which was published in the Trade Mark Journal No. 950 at page 1109. In support of the case of the petitioner, the learned Counsel for the petitioner has drew my attention to para 4 (b) of the petition wherein it has been stated that the respondent No. 1 is not the proprietor of the Trade Mark LAKSHMI and device of Lakshmi in respect of Camphor in Class 3. It has further been stated in this paragraph that on the date of application for registration of the trade mark, there were similar trade marks which were earlier registered and prior in time user claimed by respondent No. 1. The details of earlier registered trade marks LAKSHMI with the device of Lakshmi have been given in the said paragraph of the petition. As stated earlier, none has appeared on behalf of the respondent No. I and the respondent No. 1 was proceeded against ex-parte. No reply has been filed on behalf of the respondent No. 1 to controvert the allegations made in the petition. On the other hand, the petitioner has filed affidavit of Ajit Prasad Jain, sole priprietor of the petitioner in support of the averments made in the petition. In view of this, the petitioner is entitled to succeed in this petition. Accordingly, the petition is allowed and I direct the respondent No. 2 to cancel/expunge the trade mark No. 385890 from the register of the trade marks. The parties are, however, left to bear their own costs. A copy of this order be sent to the respondent No. 2 for compliance. With this order the petition stands disposed of.