R S PETITION ALLOWED FATHIMA TILES MARATHAKKARA TRICHUR KERALA Vs. SUDARSAN TRADING CO SUDARSAN BUILDING CALICUT

JUDGEMENT

(1.) PETITIONER in O.P.No.358 of 1982, on the file of this Court, is the appellant. The petition was filed for rectification of the Register or removal of the registered trademark, under Sec.56 read with Sec.107 of the Trade and Merchandise Marks Act, 1958.

(2.) THE allegations in the petition are that the petitioner has been manufacturing and selling tiles by using the trade mark of "Umbrella" from January, 1976. It has applied for registration of its Trade Mark consisting of the device "Umbrella" on 20.12.1980 claiming user from January, 1976 and the same is pending consideration. It is further averred that one Messrs. Eastern Clay Works, Sudarsan Building, Calicut had filed O.S.No. 3 of 1982 on the file of the Additional District Court, Trichur against the appellant herein (petitioner) for the issue of a permanent injunction restraining the petitioner, its servants or agents from manufacturing and selling tiles with the Trade Mark consisting of the device "Umbrella" and other reliefs. It is said that Messrs. Eastern Clay Works claimed themselves as lessees under Messrs. Sudarsan Trading Company, Calicut who are the registered proprietors of the trade mark in respect of the tiles under No.2763. It is further said that the plaintiff therein has filed an application for impleading Messrs. Sudarsan Trading Company as second plaintiff wherein it has also been said that it has been doing business of manufacturing tiles, on lease, under the trade mark consisting of the device "Umbrella" from Messrs. Faroke Tile Works. It is said that from the averments in the plaint, Messrs.Sudarsan Trading Company has allowed the registered trade mark to be used by Messrs. Eastern Clay Works.

(3.) ON the above allegations, it wanted cancellation or expunging the registered trade mark with the device "Open Umbrella" under No.2763 registered in the name of Messrs. Sudarsan Trading Company from the Register of the second respondent, and for consequential reliefs.