GUPTA ENTERPRISES Vs. GUPTA ENTERPRISES

JUDGEMENT

(1.) Appellant M/s. Gupta Enterprises has felt aggrieved with the order of the Deputy Registrar of Trade Mark (hereinafter called the Registrar). The appeal has been preferred, inter alia, on the grounds that, (1) the agreement deed dated 21st June,1988 relied by the respondent for having acquired the proprietary right had not been placed on record. In the absence of this document the Registrar could not accept the opposition, (2) that there was no document before the Registrar to conclude that Shri Kewal Krishan acquired exclusive proprietary right, nor proved the user of the trade mark in question, (3) the Registrar did not examine whether the goods of the rival parties were of same description or trade connection. In the absence of statutory or common law right having vested in the respondent the opposition could not be allowed and finally (4) the opponent never led any evidence to prove his case inspite of the opportunities given.

(2.) In order to appreciate the challenge let us have look at the relevant facts of the case. The appellant herein applied in Form TM-1 to the Register for registration of his trademark in respect of the electric boxes, light, brackets, tube patties and chokes. All being goods included in Class-9 in the name of Shri Rajender Kumar Gupta, Rajesh Kumar Gupta and Smt. Pushpa Mahajan, trading as M/s. Gupta Enterprises a partnership firm. On this application, a notice was issued. In response to which one Kewal Krishan filed opposition on Form TM-5 stating to be the sole proprietor of a proprietary concern namely M/s. Gupta Enterprises. Mr. Kewal Krishan alleged that M/s. Gupta Enterprises was engaged in the business of manufacturing electrical conduit pipes and their electrical parts and fittings. Being registered proprietor of trade mark "GUPTA" since 1953 he was competent to resist the application. His goods had attained the goodwill and reputation in the market. Since the applicant intend selling the goods identical to that of the opponent in the same area i.e. Punjab, Haryana, Madhya Pradesh, Jammu & Kashmir, Andhra Pradesh, Kamataka, Chandigarh etc. it would create confusion and deception in the mind of the customers. Opponent acquired exclusive proprietary right of the said registered trade mark "GUPTA" in view of the agreement dated 21st June, 1988 vide which other partner Ram Sarup Mahajan while separating from the firm gave exclusive right over the registered trade mark to the opponent. The third partner Sain Dass father of Kewal Krishan died on 25th 0ctober 1984. Thus his share also came to the opponent. Since partnership stood dissolved vide agreement dated 21st June, 1988, therefore, the appellant acquired proprietary right of the registered trade mark "GUPTA" which trade mark has been in use by the opponent since 1953 in relation to electrical goods registered therein.

(3.) Counter statement under Section 21(2) of the Trade and Merchandise Act, 1958 (in short the Act) on Form TM-6 was filed by the present petitioner refuting that the opponent was the sole proprietor of the registered trade mark "GUPTA". He further stated that in the year 1982 he honestly and bonafidely conceived and adopted the trade mark "GUPTA" knowing fully well that in respect of the aforesaid electrical goods there was no such trade mark in use especially in the market of States of Punjab, Haryana, Kamataka, Madhya Pradesh, Andhra Pradesh, Jammu & Kashmir, Maharashtra and the Union Territory of Chandigarh.