DINESH MILLS LTD Vs. KAMAL KISHORE MEHRA

JUDGEMENT

(1.) THIS is an appeal, under Section 91 of Trade Marks Act, 1999 (hereinafter referred to as the Act), directed against the order dated 31.3.2004 passed by the Assistant Registrar of Trade Marks, New Delhi whereby he dismissed the opposition No. DEL-6763 for want of prosecution and allowed the application No. 468903 for registration of trade mark DINESH WOOLLENS in class 24 to proceed for registration.

(2.) IT is noticed from the pleadings of the appllant that it is an established company engaged in the business of manufacturing and marketing woollen/worsted piece goods including suiting since July, 1935 using the trade mark Dinesh in 1935 and since then using the same openly, extensively, continuously and uninterruptedly in respect of the aforementioned goods throughout the country and has acquired a very high reputation. The appellant has sold its goods since 1936 to 2003-04 to the tune of Rs. 1252 crores and in order to popularise the said trade mark spent from the year 1937 to 2003-04 more than Rs. 37 crores on publicity and advertisement in newspapers, magazines, television and hoardings, etc. The appellant has applied for registration of the trade mark Dinesh under application Nos. 411410 date 1.10.1983 in respect of all goods included in class 24 made wholly or substantially from wool and 423256 dated 16.6.1983 in respect of all goods included in class 24 amde wholly or substantially from man made fibre such as polyester, nylon, orion, amylic polypropylene, viscose and the like; the registration of which are opposed by the respondent No. 1 and the applications are pending for registration. It is claimed that owing to a very long and continuous use of publicity, of the mark the trade mark Dinesh in the mind of members of public, is associated with the appellant only. The appellant has earlier also opposed the application No. 348778 for registration of trade mark DINESH WOOLLENS of the respondent No. 1 vide opposition No. DEL-3932 and the said application was dismissed by the learned Registrar of Trade Marks as withdrawn.

(3.) IN order to proceed with the matter as per order of the Delhi High Court, the appellant filed fresh evidence by way of affidavit dated 2.6.1999 of Shri Jaman Sojitra and the respondent No. 1 too filed fresh evidence by way of fresh affidavit dated 19.6.1999 in support of application, along with copy of its earlier affidavit dated 11.3.1992 and relied on exhibits filed with the affidavit dated 11.3.1992. The appellant filed its reply evidence by way of affidavit dated 22.7.1999 of Shri Jaman Sojitra; on 7.10.1999 it filed an interlocutory petition for cross-examination of Shri Mohanlal Arora, which was disallowed on 11.11.1999, and the matter was fixed for final hearing on 20.12.1999. On the said fixed date, the counsel for the respondent No. 1 appeared but none appeared for the appellant and the matter was proceeded ex parte and order passed on the same day. The appellant preferred an appeal being C.M.(M) No. 799 of 1999 before the High Court of Delhi against the orders 11.11.1999 and 20.12.1999 and the said appeal was disposed of on 24.12.1999, by the High Court, as withdrawn. Thereafter, the hearing in the main opposition was fixed and after hearing the counsel for the respondent No. 1 respondent No. 2 by its order dated 7.4.2000 allowed the opposition and refused the application for registration. The respondent No. 1 filed a review application on 4.5.2000, which was posted for hearing on 25.9.2000. When the review application was heard at some length on 25.9.2000, the counsel for the respondent No. 1 raised the issue that during the final hearing of the case (i.e. 7.4.2000) the appellant did not produce the originals of the exhibits filed by it along with its evidence and stressed that the said originals must have been produced by the appellant in accordance with the provisions of rule 57 of the Rules. The respondent No. 2 deferred the hearing of the review application to 20.11.2000 and directed the appellant to produce the originals of its exhibits vide his order dated 26.9.2000 by treating the review application as part heard.On 20.11.2000, the part heard matter was adjourned to 8.1.2001 and again to 19.3.2001, and in the meanwhile notice dated 22.11.2000 was sent to Shri J.B. Sojitra, Company Secretary of the appellant directing him to produce the originals of the exhibits filed along with his affidavit and accordingly he produced voluminous original documents. The review application was heard on 19.3.2001 and originals were seen by respondent No. 2 when Shri J.B. Sojitra, Company Secretary of the appellant with Ms. Gayatri Jambunathan, Advocate appeared for the appellant but none appeared for the respondent No. 1 and short order was passed on 19.3.2001, but order on the main review application was kept on the ground that there is no error apparent on the face of the record in the earlier order dated 7.4.2000. The opposition was posted for hearing on 31.3.2004 when counsel for the appellant could not appear but counsel for the respondent No. 1 appeared and the respondent No. 2 without going into the merits of the case dismissed the opposition for want of prosecution in terms of rule 56(4) of the Trade Marks Rules, 2002.