ASHOK KUMAR AGGARWAL Vs. RAJINDER KUMAR AGGARWAL

JUDGEMENT

(1.) THIS is an appeal from the judgment and order dated 9th July, 2007 passed by Badar Durrez Ahmed, J in a writ petition under Articles 226 and 227 of the Constitution of India. By that judgment the order of the Intellectual Property Appellate Board dated 9th September, 2004 approving the order of the Assistant Registrar dated 2nd September, 1994 rejecting the opposition filed by the respondent No.1 herein to the registration of the trade mark AGGARWAL and AGGARWAL SWEET CORNER under application numbers 453308B and 453309 is set aside and the matter is remanded to the Intellectual Property Appellate Board for the purposes of considering the question as to whether the word AGGARWAL which, admittedly is a surname, has acquired sufficient distinctiveness in relation to appellants' No.2's goods to be registrable under the Trade and Merchandise Marks Act, 1958 (for brevity sake referred to as "the Act").

(2.) THE facts giving rise to this appeal may be shortly stated.

(3.) THE respondent No.1 being aggrieved approached this Court by filing a writ petition under Articles 226 and 227 of the Constitution of India, which came to be allowed by the learned single Judge by order under appeal. The learned single Judge held that the word AGGARWAL cannot be registered as the trade mark unless distinctiveness is established on the part of the appellants. The learned Judge referred to the provisions of Section 9 of the Act to hold that without distinctiveness, the word AGGARWAL, because it was both a surname and also the name of a sect/caste, could not be registered. The learned single Judge noted that in the impugned order of the Intellectual Property Appellate Board there is no discussion with regard to the evidence of distinctiveness of the surname AGGARWAL in relation to the appellants' goods. In fact the Appellate Board appears to have taken the view that once user was established, it was sufficient for the purpose of the case. Consequently, the order of the Appellate Board was set aside and the matter was remanded to the Appellate Board for the purpose of considering the question as to whether the word AGGARWAL has acquired sufficient distinctiveness to be registrable under the Act.