JYOTI SOAP INDUSTRIES Vs. REGISTRAR OF TRADE MARKS

JUDGEMENT

(1.) THIS is an appeal preferred by the petitioners under Section 109(2) of the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as the "Act") challenging the order passed by the Deputy Registrar of Trade Marks on April 14, 1976 refusing the application for registration of the mark 'Pariwar Bar Soap".

(2.) A few facts which have given rise to the filing of this appeal are as follows : The petitioners filed an application for registration of the mark on December 4, 1971 in respect of washing soaps in class 3. The Registrar addressed a letter to the petitioners on April 21, 1972 raising two objections. The first objection was that the expression "Parivar" was not adopted to distinguish the goods and, therefore, the bar of Section 9 of the Act was attached. The other objection was that word "Parivar" used by the petitioners would conflict with the marks in two other pending applications. In pursuance of this letter, one Jayantilal, a partner of the petitioner firm, filed an affidavit on April 15, 1974, setting out the evidence of distinctiveness. In answer to this affidavit, the Registrar informed the petitioners by letter dated June 4, 1974 that the user of the mark by the petitioners on the date of the application was for a very short duration. The petitioners were advised to file a fresh application.

(3.) IN my judgment, the view taken by the Deputy Registrar is entirely erroneous. The Deputy Registrar is clearly in error in refusing the application under Section 9 of the Act. The finding of the Deputy Registrar that the mark is clearly descriptive of the goods is correct. It is difficult to appreciate how the word "Parivar" used in respect of soap is descriptive of the goods. The Deputy Registrar has relied upon the dictionary meaning of the word "Parivar" to hold that the word in respect of soap is laudatory. It is not possible to accept this view. The mere fact that soap is used by the entire family is not sufficient to warrant the conclusion that the word "Parivar" is laudatory in respect of soap. The reliance by the Deputy Registrar on the Judgement in the Perfection case reported in 26 R.P.C. 561 is incorrect. The facts of that case have no application to the present case. IN my judgment, the application could not be refused under Section 9 of the Act. Mr.Tulzapurkar rightly relied upon the decision of the Division Bench of this Court in Appeal No. 47 of 1975 dated March 20, 1978 (The Registrar of Trade Marks, Bombay v. Popatlal Punjabhai Mistry and others). The Judgment entirely supports the submission of the petitioners that the mark proposed to be registered is not descriptive of the goods.