JAGAJIT INDUSTRIES LIMITED Vs. INTELLECTUAL PROPERTY APPELLATE BOARD

JUDGEMENT

(1.) THE Petitioner in the present writ petition challenges the order dated 6th October 2006 passed by the first Respondent, i. e. the Intellectual Property appellate Board (hereafter 'the IPAB') in Original Appeal No. 19/2006/tm/del.

(2.) THE facts of the present case can be summarized as follows. The petitioner is a well established manufacturer and distributor of liquor including Indian Made Foreign Liquor, Brandy, Gin, Whisky, Rum, Vodka and other alcoholic beverages since several years. It has invented and adopted a number of well known brands such as 'aristocrat Whisky', Bonnie Scot Special Malted whisky', AC Black, AC Neat, AC K, AC Whisky, ACP Gold etc including the brand in question. It is averred that to launch another prestigious brand, the petitioner's employees, in late 1993, invested and coined the mark 'blenders pride' (hereafter called the mark'' ). The Petitioner adopted the mark in 1993 after investing considerable time and expenditure on research in brand equity and marketing. It is claimed that the Petitioner, for the sale of its whisky, initially used the said mark, in 1994 and that it is the prior user of the mark in India. The Petitioner claims having applied to the Excise and Taxation commissioner, Punjab for approval of its label on 18. 10. 1993. The approval for the use of labels bearing the mark for the sale of whisky in the State of Punjab was subsequently granted by the Commissioner, on 10. 11. 1993.

(3.) IT is averred that on 2nd February 1994, the Petitioner also applied to the second Respondent for registration of trade mark 'blenders Pride' in Class 33 under provisions of the Trade Marks Act, 1958 (hereafter 'the Act'); application No. 618414. In the application it had claimed to be a user since january 1994. That application was advertised in the Trademark Journal dated 27th August, 2003 and made available to the public on 7th October, 2003. It is further averred that no opposition to the said application was filed within the prescribed period (of three months) which expired on 7th January, 2004 and that the Trademark 'blenders Pride' was registered in favour of the Petitioner through Certificate of Registration dated 13th January 2004 with effect from 2nd february 1994. It is also claimed that on account of the said registration, the petitioner has exclusive right to use the trademark in respect of the liquor in class 33, under section 28 of the Act. The Petitioner also avers that the fourth Respondent claims that it made an application for extension of time on 6th January 2004 for filing opposition, but in fact no order was made granting any extension. On 16th January 2004 the trademark 'blenders Pride' was renewed in favour of the Petitioner for a further period of 10 years with effect from 2nd February 2004