GODFREY PHILLIPS INDIA LIMITED Vs. KHODAY INDIA LIMITED

JUDGEMENT

(1.) The appellant assails an order dtd. 5/12/2012 by which Opposition No.MAS-736000 in respect of Application No.668242 for registration of the trade mark "Red & White" was rejected.

(2.) The first respondent herein is a manufacturer of alcoholic beverages. An application for registration of the trade mark "Red & White" was submitted by the first respondent on 6/6/1995 on a 'proposed to be used' basis. The said trade mark was accepted for advertisement and advertised in Trade Mark Journal No.1398, regular, dtd. 1/9/2008. Upon noticing such advertisement, the appellant filed notice of opposition on 28/2/2009, which was registered as Opposition No. MAS-736000. The said opposition was filed on the basis that the appellant owns the trade mark "Red & White" in relation to cigarettes and other related products. The appellant asserted that it adopted and started using the trade mark "Red & White" since 1940 and that the said trade mark was advertised widely in the print and electronic media. The appellant further asserted that registrations were obtained in respect of the trade mark "Red & White" and formative marks in class 34 from 5/2/1973 onwards. Such registrations were also obtained in classes 41, 3 and 25. The appellant also submitted evidence in support of the opposition, including in relation to the sales turnover from the sale of cigarettes bearing the trade mark "RED & WHITE" between the financial years 1989-90 and 2008-09. The first respondent filed a counter statement to the opposition on 28/2/2009. After a hearing, by impugned order dtd. 5/12/2012, the opposition was rejected and, subject to the incorporation of 'Khoday's', the trade mark 'KHODAY's RED & WHITE' was registered. The present appeal was filed in the above facts and circumstances. Counsel and their contentions

(3.) Oral arguments on behalf of the appellant were advanced by Mr.Arun C. Mohan, learned counsel; and on behalf of the first respondent by Ms.Gladys C Daniel, learned counsel; the second respondent was represented by Mr.M.Karthikeyan, learned SPC.