VISHNUDAS KISHINDAS ZARDA FACTORY HYDERABAD Vs. VAZIR SULTAN TOBACCO COMPANY LIMITED AZAMABAD HYDERABED

JUDGEMENT

(1.) THESE two appeals preferred under section 109 (5) of the Trade and Merchandise Act, 1958 (hereinafter called 'the Act) read with clause 15 of the Letters Patent, are directed against a common order of Ramanujam J. in A.A.O. Nos. 582 and 583 of 1976 dated 11-9-1980.

(2.) THE related facts leading to the filing of these appeals are as under: THE respondent herein is the registered proprietor of two trade marks bearing Nos. 9951 and 170427, having registered them for 'manufactured tobacco' occurring in cause 34 of the Fourth Schedule to the Trade and Merchandise Mark Rules 1959 (hereinafter referred to as 'the Rules'). THE above said two trade-marks were obtained on 23.12.1942 and 1.8.59 respectively. THE first trade mark, namely, the Trade Mark bearing No. 9951 consisted of a label with a device of Charminar and a word 'Charminar' along with a monogram and trading style of the respondent, while the second trade mark, namely 170427 consisted of a label with two panels each containing the word 'Vizar Deluxe' and trading style of the respondent. Apart from the above, one panel contains the monogram in the middle. THE said two trade marks have been continuously and exclusively used by the respondents in relation to cigarettes manufactured by them, from the date of their registration. While so , the appellant started manufacturing of 'Quiwam' and 'Zarda' from 23.8.1973, adopting a trade mark consisting of the device of Charminar and the expression 'Charminar' along with other designs and descriptions depicted thereon. THE appellant applied for registration of the said trade mark under section 18 of the Act. In view of the objections raised by the respondent herein, the application of the appellant was rejected under section 12 (1) of the Act on 24.9.1973. While rejecting the application, the Joint Registrar notice that the appellant offered to apply for rectification. Consequently. THE appellant preferred two applications bearing Nos. MAS 149 and 150 on 15.10.1973 for rectification of the registration of the respondent's two trade marks bearing No. 9951 and 170427. THE relief prayed for in those two applications was for expunging or in the alternative limiting the registration of trade mark No. 9951 to 'Manufactured tobacco' other then 'Quiwam' and Zarda'. A similar relief was prayed in the application filed in respect of Trade Mark No. 170427 as well. It may be mentioned that the main ground on which those rectification's applications were filed was on the basis of non-user. In Other words, the case of the appellant was that the said two trade marks had been registered without any bona fide intention on the part of the respondent to use those marks in respect of 'manufactured tobacco' except for manufacturing cigarettes and in fact there had never been any use of the marks in relation to 'manufactured tobacco' except for cigarettes either prior to or after the date of registration, and in any event up to a date of one month before the filling of the application for rectification. It was also pleaded by the appellant in support of their application for rectification that the registrations already given to the respondent are bad in law due to vague and ambiguous designation of goods, that the device of Charminar appearing in both marks being a State emblem of the erstwhile Nizam State, is not registerable under the Act, the application for registration of their trade marks in respect of their goods, namely, Quiwam' and 'Zarda' was opposed on the ground that the trade marks already given to the respondent will conflict with the proposed trade mark of the appellant as the respondent were given designation of goods as 'Manufactured tobacco'. THE appellant, considering themselves as aggrieved persons, contended before the Registrar that they are entitled to file the application for rectification.

(3.) THE Assistant Registrar of Trade Marks, after giving reasonable opportunities to both parties, found that the appellant are person aggrieved, and as such, are entitled to move the applications for rectification. He also held that the respondent had no bona fide intention to use the trade marks in relation to goods other than cigarettes and that in fact the respondent had not used its trade mark at any time since their registration to goods other than cigarettes and that therefore the registration of the Trade Marks should be limited to cigarettes alone.