SAFARI INTERNATIONAL Vs. SUBHASH GUPTA

JUDGEMENT

(1.) THIS appeal is directed against the judgment and order dated 28th July, 2006 whereby the learned Single Judge dismissed the writ petition filed by the appellant herein against the order of the Intellectual Property Appellate Board. Vide order dated 9th March, 2006 the Intellectual Property Appellate Board allowed the application of the Respondent No. 1 against the order of Assistant registrar of Trade Marks.

(2.) RESPONDENT No. 1 herein had been manufacturing tricycles, bicycles and baby cycles under his sole proprietorship concern M/s. Shagun Udyog since 1974 under the trademark SAFARI. In April 1979 he filed an application for registration of the said trademark and the same was registered in July, 1988 bearing registered trade mark No. 348290. In the meantime, in the year 1981 respondent no. 1 incorporated a private limited company under the name and style M/s. Safari cycles Private Limited wherein the respondent No. 1 and his brother were equal shareholders. Though the said company did not carry on any business but the respondent No. 1 continued the business in his individual capacity. In December 1984 brother of respondent No. 1 resigned from the company transferring his shareholding in the name of the respondent No. 1 and respondent No. 1 s wife. Consequently, the respondent No. 1 and his wife became shareholders in the ratio of 70:30. From January 1985 business activities of manufacture and sale of goods under the trade mark SAFARI were taken over and continued by Safari Cycles private Limited.

(3.) IN February, 1995, the appellant herein filed an application before the Trade marks Registry, New Delhi for registration of a similar trade mark and also initiated rectification proceedings on the ground of non user by the respondent no. 1. In the said proceedings, the learned Assistant Registrar of Trade Marks allowed the said application and directed removal of the respondent No. 1 s registered trade mark SAFARI on the ground that the respondent No. 1 had obtained the said registration by playing a fraud and also on the ground of non user by the respondent No. 1.