I T C LIMITED Vs. GTC INDUSTRIES LIMITED

JUDGEMENT

(1.) THIS petition challenges the order dated 20th December 1994 by which the Assistant Registrar of trade marks has dismissed the petitioners opposition and allowed the registration of the trade mark "gutsy" to the respondents in respect of the cigarettes, tobacco, safety matches and smokers articles, in Clause 34.

(2.) ON 5th September, 1985 the respondent No. 1 applied for the registration of the trade mark "gutsy". On 1st December, 1990 an advertisement was published. On 7th January ,1991 the petitioner filed its opposition inter alia on the following ground that the trade mark "gutsy" is not registerable as it is neither distinctive nor capable of distinguishing and, therefore, does not satisfy the requirement of registrability as laid down by the Act. They further contended that the trade mark is a laudatory expression and there is nothing inherently distinctive in it nor is it capable of distinguishing the goods in respect of which it is proposed to be used from the other goods in the same class. The respondent No. 1 therefore objected to the registration of the trade mark under Part "a" or Part "b" on the register. There were other objections also. What is mainly agitated before me are the objections mainly concerned with those mentioned above. There is no dispute that originally the respondent No. 1 applied for the registration of the trade mark in Part "a". However, in pursuance to a personal hearing the application was ordered to be advertised as accepted in Part "b". Therefore, the question before the Registrar was whether the trade mark should be registered in Part "b".

(3.) THERE is also no dispute about the fact that the trade mark "gutsy" has not been used before for the purpose of trading in cigarettes and the other articles mentioned above.