BHIM SAIN Vs. JANTA NASWAR FACTORY

JUDGEMENT

(1.) This appeal under Section 109 of the Trade and Merchandise Act, 1958 (hereinafter called "the Act" for short) is directed against an order of the Assistant Registrar dated 27th October, 1975 rejecting application of the appellant for registration of their Trade Mark.

(2.) On 9th May, 1972 the appellant firm M/s. Bhim SainYash Pal comprising of two partners Bhim Sain and Shiv Prakash applied vide application No. 280087 for registration of trade mark "AATH PHOTO MARKA" snuff in Class 34 claiming user since 1972. After preliminary scrutiny and on the ground of conflict with the application of the opponents No. 2547598 this mark was accepted subject to disclaimer of digit "8" and the words "AATH PHOTO MARKA". It was advertised in Trade Mark Journal No. 597 dated 16th July, 1973.

(3.) Feeling aggrieved by the aforesaid order, the appellants have preferred this appeal inter alia on theg ground that there was neither any resemblance between the trade mark labels of the two parties, nor there was any similarity. The product of the respondent was being sold under trade name "JANTA MAIL SNUFF" The respondent/opponents applied later on for registration of the "AATH PHTO MARKA" under No. 2900965, vide Exhibit 'L'. In the respondent's label, the device of a bust and the words JANTA MAIL NASWAR on one panel; on the other penal a scroll and the words JANTA MAIL NASWAR in Hindi script; in the third panel there were photos appearing of a Muslim with beard, Kullah, turban and buttoned up coat; and in the fourth panel the words JANTA MAIL NASWAR in Gurmukhi and Gujrati. Its user was admitted by Shri Meghraj Phophaliya, who clarified in his affidavit dated 10th February, 1975 that the sale never exceeded over Rs. 2,000 .00 per annum. Subsequent affidavit dated 17th July, 1974 could not be relied upon. The respondent failed to produce any convincing evidence to establish the user and reputation of the mark.