PURSHOTTAM K PATEL Vs. BASTIRAM NARANDAS

JUDGEMENT

(1.) THIS petition is an appeal against an order of the Registrar of Trade Marks dated 1-5-1957 refusing to accept the Petitioner's application dated 7-5-1954 for registration of trade mark. The relevant facts which arise on this appeal arc as follows:

(2.) THE opponents had been using a mark containing "camel" imprint since about 1920 in respect of bidi manufactured and sold by them in districts of Nasik, Khandesh and other districts in the States of Bombay and Hyderabad. That mark is annexed as Ex. B to the petition before me. In 1942 the opponents' mark was registered under the Trade Marks Act. The petitioner's case is that in 1936 one Shankar Govind Patil commenced to use the trade mark which is annexed us Ex. A to the petition and containing "camel" imprint in connection with bidi manufactured by him and sold in a small place called Sinnar situate in Nasik district. Shankar Covind Patil made a declaration in respect of that mark which is dated 17-11-1936. Shankar Covind Patil has made an affidavit dated 7-9-1936 in the proceedings. It is his case that in 1936-37 he for a few days carried on business under that mark for Messrs. Premiaj Bhimraj a firm of merchants trading at Jalgaon. The mark was prepared by Shankar Govind Patil for Messrs. Premraj Bhivraj and he had made the declaration and registration of that mark for Messrs. Premraj Bhivraj. He has in his affidavit stated that he carried on business for one or two months and stopped the same, that he had only two workmen in his business and that in 1938 he sold the label of the mark to Messrs. Premraj Bhivraj because that label was not current in the market. Messrs. Premraj Bhivraj appeared to have purchased merely the label or the mark for Rs. 99/- by a sale-deed dated 22-2-1938. Messrs. Premraj Bhivraj appear to have become a partnership firm and one Dhauraj Bhivraj a partner of that firm has made an affidavit dated 25-8-1956 in these proceedings. It is the case of the partners that Messrs. Premraj Bhivraj had for 8 to 12 months tried to sell bidis under that mark in Khandesh district and about that year 1941 the bidi factories of Messrs. Premraj Bhivraj were closed altogether and no bidis were manufactured and the mark discontinued altogether. Messrs. Premraj Bhivraj appear to have sold merely the mark to a partnership firm of M/s. Patil and Co. which carried on, business in Bidis at Bhusaval by a sale-deed dated 22-6-1945 for the price of Rs. 500/-, The sale-deed does not show that Messrs. Premraj Bhivraj were carrying on business in bidis under that mark at the date of sale. Messrs. Patil and Co. appear to have been dissolved and on dissolution by a deed of sate dated 10-7-1945 one Duba Rangu Chaudhari being a partner of the dissolved partnership firm became the owner of the mark upon payment of a sum of Rs. 375/ -. Duba Chaudhari appears to have sold the mark to the petitioner by a sale-deed dated 9-4-1954. In that deed of sale the mark of the petitioner is referred to as "pakhal mark". Though the deed purports to sell the mark along with goodwill; in fact there was not business of any kind then in existence and the question of sale of goodwill could not have arisen. In the deed of sale it is mentioned that "as the Bidi workshop of the Bidis of the above label is closed, the goods bearing the said trade mark arc not current in the market". The price paid for sale of the mark was Rs. 351/ -. Even before a month had elapsed since the sale of. the mark in his favour on 4-5-1954. the petitioner applied to the Registrar of Trade Marks for registration of his mark in clause 34 in respect of Bidis. In that application it is mentioned that the petitioner carried on business in the name of Messrs. Chhaganlal Kishorbhai Patel at Jalgaon in East Khandesli. In his affidavit dated 24-9-1954 the petitioner made reference to the present sales of his Bidis and alleged that the mark had been in use for the last 80 years and more. In a further affidavit dated 25-11-1954 the petitioner purported to give figure of sales under the mark which came to be owned by the petitioner. He purported to state that the sales were between 1936 and 1938 of the amount of Rs. 27,000/- and between 1944 and 1953 of the amount of Rs. 32,000/ -. All these figures are found to be false by the Registrar. Having regard to their mark containing "camel" imprint the opponents filed their notice of opposition under Section 15 (2) of the Trade Marks Act on 11-4-1955. In their notice the opponents pointed out that they were registered owners of Marks Nos. 100274, 100275 and 119829 containing "camel" imprint They further pointed out in detail that the Petitioner's mark contained the device of a camel as its central figure and its main and essential feature and so nearly resembled the opponent's registered trade mark, that it was likely to deceive or cause confusion. They also pointed out that the petitioner's mark when used in relation to bidis would be disentitled to protection in Courts of Justice by reason of its being likely to deceive and cause confusion. In the circumstances the opponents under the provisions of Sections 8 (a) and 10 (1) of the Trade Marks Act submitted that the petitioner's application for registration should not be granted.

(3.) AFFIDAVITS were filed on behalf of both the sides thereafter in support of their contentions before the Registrar. The questions which arose before the Registrar were: