KOTHARI TRADERS Vs. ASHOK IRON AND STEEL

JUDGEMENT

(1.) This appeal is filed by the appellant- M/s. Kothari Traders under sec. 109 of the Trade and Merchandise Marks Act, 1958 (Hereinafter referred to as "the Act" for short) against the order passed by the Assistant Registrar of Trade Marks dated 6.11.1998 in the matter of opposition No. AMD-51697 and in the matter of application No. 546182, whereby the Assistant Registrar of Trade Marks (respondent no. 2 herein) dismissed opposition No. AMD-51697 preferred by the present appellant and has accepted application No. 546182 filed by the first respondent herein.

(2.) The facts leading to the present appeal are as under: The appellant has been engaged in the business of manufacture of wicks, which the appellant has been manufacturing and selling under the marks of "Samrat Ashok" since the year 1987. It is the case of the appellant that it has made an application for registration of the Trade Mark "Samrat Ashok" for the wicks manufactured by it being Application No. 595667 dated 27.4.1993. The said application is under consideration by the Registrar of Trade Marks and no order is passed till the date. While the application of the appellant is under consideration for the registration of it's marks "Samrat Ashok" for wicks, the first respondent herein, has filed an application being Application No. 546182 for registration of its brand name for wicks also. It may be stated that the respondent no. 1 has got a registration of "Ashok" in Class-11 for wicks Stoves and the same is being renewed by the concerned registry from time to time. Thus, the respondent no. 1 has been granted a registration for it's stove under Class-11 is not in dispute.

(3.) The second respondent advertised the application of the first respondent in the Trade Marks Journal No. 1152 dated 1.6.1997 as per the provisions of the Trade Marks Act and vide the said advertisement the objections were invited form the concerned parties. In pursuance to the said advertisement, the appellant vide its notice dated 20.8.1997 filed objections. It appears that the Trade Mark Registry returned the affidavit filed by the appellant herein in the above proceedings on a technical ground that the same was not prepared in a prescribed form and that since the time limit for filing such evidence had already expired, the matter would proceed for adjudication thereby closing the evidence vide communication dated 24.2.1998. It appears that the appellant, thereafter file an interlocutory petition in the Trade Mark Registry on 7.4.98, praying therein that the affidavit of the partner of the appellant firm sworn on 7.4.1998 be taken on record as further evidence in support of the opposition. The second respondent thereafter took up the matter for adjudication and after hearing the parties, passed the order dated 6.11.98 dismissing the appellant's opposition application and accepted the application of the first respondent herein in Class-11. Hence, the present appeal.