HAJI LATIF GANI KACHHI Vs. SANGISHETTY RAMULU

JUDGEMENT

(1.) 1. This is an Appeal filed by the appellant under Sec.109(2) of the Trade and Merchandise Marks Act, 1958. Challenging the order of the Assistant Registrar Trade Marks at Chennai in Opposition No.MAS 3251 dated 24.3.1998 to the Trade Mark Application No.479278.

(2.) THE respondent (Application) filed an application No.479278 dated 1.10.1987 for the Registration of the Trade Mark containing the picture of goddess Laxmi and God Ganesh in a sitting posture with the words ?Laxmi Ganesh Beedi ? in respect of the product Beedi. THE appellant (Opponent) herein entered into the notice of opposition for the registration of the above said trade mark on the ground that they are the registered proprietors of three trade marks viz., (1)?A rectangular label on which the device of Goddess Lakshmi Standing on the lotus. (2)?THE device of Goddess Lakshmi in a standing pose on a lotus flower with the words ?Lakshmi Chhap? (3)?An oval shape with a flower and the words ?Phool Chhap? and the same were registered under Numbers 2749, 2751 and 2750 respectively in respect of beedies in the year 1945 itself-

(3.) THE learned Advocate for the appellant has submitted that the Trade mark sought to be registered by the respondent is prohibited under Secs.9, 11(a)12(1) and 18(1) of the Act. Sec.9 of the Act deals with necessary particulars to be furnished by the parties seeking for the registration either in Part A or Part B of the Register. It states, A name, signature or words other than such as fall within the descriptions in clauses (a), (b), (c) and (d) of Sub-sec.(1) shall not be registrable in Part A of the Register except upon evidence of it is its distinctiveness. THE expression ?Distinctive in relation to the goods in respect of which a trade mark is proposed to be registered.? means adapted to distinguish goods with which the proprietor of the trade mark is or may be connected in the course of trade from goods in the case of which no such connection subsists either gainfully or, where the trade mark is proposed to be registered subject to limitations, in relation to use within the extent of the registration. A trade mark shall not be registered in Part B of the register unless trade mark in relation to the goods in respect which it is proposed to be registered is distinctive or is not distinctive but is capable of distinguishing goods with which the proprietor of a trade mark is or may be connected in the course of trade from foods in the case of which no such connection subsists, either generally or, where the trade mark is proposed to be registered subject to limitations, in relation to use ?within the extent of the registration?. This section generally deals with general particulars to be furnished and the only condition imposed is, that the expression must be distinctive in relation to the goods, in respect of which a trade mark is proposed to be registered. In our case, the appellant obtained the trade mark for the products beedi and the respondent also seeking registration of trade mark for beedi. Beedi is the product, widely known in all parts of India and as such, it is a general product easily identifiable and as such, the respondent does not fall within any of the inhibition set out in the section.