LAKSHMI NARAYAN KARVA Vs. SATYANARAYANAN KHUBCHAND KARVA

JUDGEMENT

(1.) THIS Letters Patent Appeal is directed against the judgment of Maharajan, J. in C. M. A. 151 of 1969, which was filed by the appellants against the order of the Assistant Registrar of Trade Marks, Madras, in an application filed by the respondents under Sections 46 and 56 of the Trade and Merchandise chandise Marks Act, 1958, in the matter of the appellant's trade mark No. 217448. The Assistant Registrar allowed the respondents' application for rectification of the Register of Trade Marks by expunging the appellants' trade mark. The appellants are a partnership firm carrying on business under the name and style of Ramachandra Lakshminarayana Karva at Begum Bazar, Hyderabad, Andhra Pradesh, in certain commodities including chloride used for industrial purposes. The respondents also are a partnership firm carrying on business at Begum Bazar, Hyderabad in ammonium chloride. The appellants' trade mark consists of the word 'Salammoniac' appearing in between the two devices of a crescent and a star with the letters 'RLK' appearing within each device of the crescent, and it has been registered in respect of ammonium chloride used for industrial purposes. The respondents' trade mark consists of a label containing a device of two stars and crescents with the letters 'KSI' within the crescent device and the expression 'AMCLO' in between the two devices. The appellants applied for registration of their trade mark in Part A of the Register of Trade Marks on 30 -8 -1963 on the allegation that the trade mark was first adopted or invented by their concern in the year 1956 for use in ammonium chloride (Navasagar) business and that it had been in use continuously from 1956 exclusively and without any interference of interruption from any quarters whatsoever. They also alleged in the application for registration that ammonium chloride worth several lakhs had been sold under the said trade mark and that the trade mark had become very popular and deserved protection of law. After examination of the application, the Assistant Registrar informed the appellants inter alia that the letters 'RLK' appearing on the mark were not considered prima facie distinctive and were not registerable in part A of the Register except upon evidence of distinctiveness under Section 9 of the Act, that the word 'Salammoniac' constituting the leading feature of the trade mark was purely descriptive of the goods and was not distinctive within the meaning of Section 9 of the Act and that the mark conflicted with certain trade marks, the particulars of which were furnished to the appellants. Thereupon, the appellants disclaimed the right to the exclusive use of the device of a crescent and star and the expression 'Salammoniac' and the trade mark was accepted for registration by the order of the Assistant Registrar on 9 -3 -1964, and the application as accepted for registration was advertised in the Trade Marks Journal dated 1 -6 -1964. Subsequently, the appellants instituted O.S. 13 of 1966, in the City Civil Court, Hyderarbad at Secunderabad, for an injunction restraining the respondents from ever manufacturing or selling ammonium chloride or Navasagar with the respondents' trade mark impressed thereon. They have alleged in paragraph 12 of the plaint in that suit that they have suffered very much on account of the respondent's introducing the goods under an imitation of their trade mark and that the continued use of the trade mark by the respondents would cause to the appellants incalculable and irreparable injury which cannot be adequately compensated by money. The respondents contended in their written statement in that suit that it was the appellants that tried to injure them out of malice and jealously by using their trade mark. It is only after the institution of that suit the respondents filed their application before the Assistant Registrar of Trade Marks, Madras, under Sections 46 and 56 of the Act for the rectification of the register of trade marks by expunging the appellants' trade mark.

(2.) THE appellants opposed the application before the Assistant Registrar contending that the respondent had not been using their trade mark from 1961, whereas they were exclusively, extensively and continuously using their own trade mark from 1956 without any interference from any quarters. They denied that the respondents were persons aggrieved and contended that they filed the application before the Assistant Registrar only to nullify the action taken by the appellants against them in the suit filed in the City Civil Court. Hyderabad at Secunderabad. They denied that they had no bona fide intention to use the trade mark for ammonium chloride for industrial purposes and contended that their trade mark was registered after evidence regarding distinctiveness was produced and that Section 9 of the Act does not, therefore, apply. They denied the allegation that the entry regarding the trade mark was made without sufficient cause and contended that the respondents are not entitled to invoke the previsions of Section 56 of the Act.

(3.) REFERRING to the three letters 'RLK' occurring in the appellants' trade mark in between the crescents and the stars, Maharajan, J. has observed in his judgment that there is nothing inherently distinctive about any of these three letters of the English alphabet, and that there is nothing distinctive about the manner in which these letters have been placed in the trade mark. He expressed the view that the registration of these letters would certainly have the effect of improperly interfering with the rights of existing or future firms having the initials 'RLK' to attach the initials of their firm name to their goods. The learned Judge thought that a trade mark consisting of a letter or letters is a weak trade mark and to be entitled to registration it should have enjoyed wide and extensive circulation to such an extent that to all persons concerned in that particular trade, the letter or letters should have become indicative of the manufacturer and the persons using the trade mark. Discussing the evidence regarding the user of the trade mark of the appellants, the learned Judge found that the mark must have been used after August 1962, that is to say, for about just one year before the appellants made their application for registration of the same on 30 -8 -1963, and observed that there is little evidence to show that during this short period the goods produced by the appellants had become associated in the public mind with the letters 'RLK'. Thus, he agreed with the Assistant Registrar and held that the letters 'RLK' are registrable neither in part A of the register as an inherently distinctive mark nor in part B of the register as being inherently capable of distinguishing or by reason of the use of the trade mark or of any other circumstances it is so adopted to distinguish. Having regard to the fact that the appellants had filed O.S. 13 of 1966 in the City Civil Court, Hyderabad at Secunderabad, for injunction against the respondents, and to the contentions of the parties, namely, the appellants complaining in paragraph 12 of the plaint in that suit that they have suffered very much on account of the respondents introducing the goods under an imitation of their trade mark and the continued use of the trade mark by the respondents would cause incalculable and irreparable injury to them, and the respondents contending that it is the appellants that tried to injure them out of malice and jealousy by using their trade mark, the respondents were persons aggrieved. In this view, the learned Judge held that the registration of the appellants' trade mark was made without sufficient cause and the entry has wrongly remained in the register and dismissed the appeal with costs. Hence this Letters Patent Appeal.