RAGHUBHAR DAYAL Vs. VAID PREM SAGAR AGGARWAL

JUDGEMENT

(1.) THIS is a petition under S. 56 of the Trade and Merchandise Marks Act, 1958 (for short the Act for cancellation of the registered trade mark No. 294966 in the name of Vaid Prem Sagar Aggarwal, proprietor M/s Hindustan Medicines, Aligarh, who is respondent No. 1 in the petition.

(2.) THE case of the petitioner is that he has been carryig on his business of manufacturing and selling an ayurvedic medicinal preparation for children (Ghutti) under the trade mark ASLI BURHIA KI GHUTTI since the year 1951 and that the packing carton bearing this trade mark was duly got registered by the petitioner with the Registrar of Copyrights under Registration No. A-1961/66. THE petitioner then claims that he had sold this Chutti of the value of over Rs. 1 lac and also advertised the said Ghutti under the trade mark ASLI BURHIA KI GHUTTI through different media of advertising. THE complaint of the petitioner is that respondent No. 1 got registered this trade mark by concealing the material facts and making false statements, which trade mark was registered under Registration No. 294966. It is stated that it was only on April 1, 1970, that the respondent started using this trade mark which the petitioner had used extensively and continuously for about 16 years. It is alleged that registration of the aforesaid trade mark in the name of respondent No. 1 is contrary to the provisions of S. 11 of the Act and the same is likely to cause confusion and deception among the public and the trade.