FARBENFABRIKEN BAYER AKTIENGESELLSCHAFT Vs. CHRISTOPHER JOHN

JUDGEMENT

(1.) This is an appeal preferred under sub-section (2) of Section 109 of the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as the "Act") to challenge the legality of the order dated April 4, 1975 passed by the Assistant Registrar of Trade Marks allowing the application filed by the respondents for registration of a trade mark which consists of the word "ERCOS" written cross wise in Class 5 in respect of medicinal preparations.

(2.) The respondents had filed application for registration of the mark on September 16, 1970 and the application was advertised before acceptance in the Trade Marks Journal No. 537 dated October 16, 1971 at page 709. The proposed mark is the word "ERCOS" written in cruciform and surrounded by a circle. On February 15, 1972, the petitioners filed a notice of opposition and the grounds of opposition were that the petitioners are the registered proprietors of trade mark No. 147346 which has been registered in Class 5 in respect of various items including medicinal preparations. The mark of the petitioners, which is registered is "BAYER" written in cruciform and surrounded by a circle. The petitioners claim that the mark propounded for registration by the respondents is deceptively similar to their trade mark. The petitioners also claimed that the trade mark "BAYER" was used by them since 1909 and has attracted world-wide reputation. The petitioners claim that the device of the word "BAYER" written in cruciform and surrounded by a circle is a distinctive trade mark in respect of medicinal and pharmaceutical preparations and, therefore, the application made by the respondents for registration of the mark should not be granted.

(3.) It is necessary to mention that the petitioners in support of the claim filed an affidavit dated January 19, 1974 of Shri Gunthar Peters, who is in the employment of the petitioners. The respondents, on the other hand, did not file any evidence in support of the application. The hearing was fixed before the Assistant Registrar on December 24, 1974 and the respondents did not care to remain present, nor did make any application for adjournment of the hearing, with the result that the Assistant Registrar was left with only the application filed by the respondents and the opposition to it by the petitioners along with the evidence led by the petitioners in support of the claim. The Assistant Registrar came to the conclusion that the objections to registration of the mark under Section 11 and Section 12(1) of the Act are without any merit. The Assistant Registrar held that the petitioners have not discharged the onus of proving that their mark "BAYER" has acquired any reputation. The Assistant Registrar further held that the petitioners failed to establish that the registration of the trade mark of the respondents is likely to deceive or cause confusion by reason of similarity in respect of the same or of the same description of the goods. The order of the Assistant Registrar is under challenge.