DEV DARSHAN DHOOP INDUSTRIES Vs. JETHA NAND

JUDGEMENT

(1.) THREE trade marks Nos. 313678, 331361 and 342019 were got registered by respondents Nos. 1 to 3 in respect of the trade mark 'HARI DARSHAN' in respect of dhoop and agarbatis. During the proceedings of the registration of these trade marks a notice of opposition was given to the petitioner M/s Dev Darshan Dhoop Industries, Samana, District Patiala (Punjab) who filed the opposition in the registry of trade mark but that opposition was dismissed and no evidence had been produced therein by the petitioner and even review petition was also dismissed. Consequently the petitioner filed this petition under Sections 46 and 56 of the Trade & Merchandise Marks Act, 1958 (in short the Act) for the rectification of aforesaid three trade marks alleging that the use of trade mark 'Hari Darshan' by the respondents is deceiving and causing confusion as the petitioner is the owner of the well known and reputed trade mark 'Dev Darshan' and is also contrary to the statutory provisions of the Act. By means of I. A. 5075/85 the respondents point out that in an earlier suit being S. No. 572/84 Lakshmi Dhoop Factory owned by the respondents had brought a suit against Dev Darshan Dhoop Industries petitioner wherein a compromise took place between the parties on 25/4/1984 and in which compromise statement of Surinder Kumar Jain partner of Dev Darshan Dhoop Industries petitioner was recorded where in Dev Dharshan Dhoop Industries stated that it had never manufactured dhoop and agarbatis under the trade name 'Hari Dharshan' and it further undertook that it would not manufacture or sell dhoop or agarbatis under the trade name 'Hari Darshan' and upon that statement that suit of Lakshmi Dhoop Factory was withdrawn and dismissed as such. On account of the aforesaid admission and undertaking given by the petitioner Dev Darshan Dhoop Industries in that other suit, it is asserted that the present rectification proceedings brought by the petitioner are not competent. This application of the respondents has been resisted by the petitioner. The two cause of action, one in the previous suit No. 572 of 1984 and the other in the present rectification proceedings are quite different and distinct from each other and the statement of Surinder Kumar Jain Partner of petitioner-firm in that suit does not affect the petitioner's right to bring the present regular proceedings in as much as in that earlier statement what was admitted was that the petitioner Dev Darshan Dhoop Industries shall not sell or manufacture dhoop or agarbatis under the trade name 'Hari Darshan' and had never done so earlier but that did not mean that the trade mark 'Hari Darshan' of the respondents was accepted as such by the petitioner in the matter of the validity of the registration and the petitioner's right for rectification there of remains unaffected and the petitioner can challenge the same by way of rectification on the ground that the trade mark 'Hari Darshan' of the respondent is offending the statutory provisions of the Act and is even otherwise deceptively similar to the petitioner's well known and reputed trade mark 'Dev Darshan'. There is nothing in the Act which prevents the opponent from filling the evidence under Rule 53 and there is nothing in Rule 53(2) which prevents the opponent from filling a rectification application at a subsequent stage. The opposition in the registry of trade mark was dismissed when no evidence had been filed by the petitioner because under Rule 53 (2) if an opponent does not produce evidence before the Registrar he shall unless the registrar otherwise directs, be deemed to have abandoned his opposition. So that was only a case of abandoning the opposition on the part of the petitioner and the dismissal of the opposition being without evidence and thus not on merits and even the dismissal of the review application suffering the same fate, cannot operate as resjudicata for the filing of the present rectification proceedings. For the aforesaid reason I. A. 5075/85 moved by the respondents is utterly without merits and is, therefore, dismissed with costs. Counsel's fee Rs. 200.00.