BANIK RUBBER INDUSTRIES Vs. D B RUBBER INDUSTRIES

JUDGEMENT

(1.) This is an application under Section 56 of the Trade and Merchandise Marks Act, 1958. The petitioner Banik Rubber Industries is seeking the cancellation of a trade mark which has been registered by the Registrar of Trade Marks, under Registration No. 377580 in Class 25 in the Trade Marks Register. The petitioner is also seeking the rectification of the register of trade marks by removal of the aforesaid entry, from the register of trade marks, in favour of the respondent No. 1, Sree K.B.Rubber Industries.

(2.) The case of the petitioner inter alia is that the firm in the name of Eastern Rubber Works had got registration in respect of two trade marks. One was the trade mark bearing Registration No. 232909 dated 27th December, 1965 in Class 25 in the Trade Mark Register in the name of "Ajanta Hawai" in respect of Chappals and soles and straps. The other trade mark is the trade mark bearing No. 242561 dated 7th June, 1967 in Class 25 in the Trade Mark Register under the name of "Mugur Brand" in respect of chappals. There is no dispute that the petitioner, Banik Rubber Industries, is the present holder and/or assignee of the said trade marks, under the name of "Ajanta Hawai" and "Mugur Brand". The said Eastern Rubber Works was also the proprietor of a registered copyright in respect of artistic work relating to the aforesaid trade marks, under copyright registration No. A 11318/74 dated 11th June, 1974. However this court is only concerned with the rights if any of the parties under the Trade and Merchandise Marks Act 1958.

(3.) On 8th June, 1981 the petitioner sent a notice to Sree K.B.Rubber Industries, the respondent No. 1, stating inter alia that the respondent was using the trade mark "Ananta" in such a fashion so as to deceive or confuse the customers or intending purchaser of "Ajanta Hawai" Chappals. The petitioner also objected to the use of the trade mark "Hammer Brand" which according- to the petitioner, was confusingly similar and/or nearly resembled the registered trade mark "mugur Brand". By the said letter the petitioner inter alia requested the respondent No. 1, to desist from manufacturing, stocking, selling, advertising and/or distributing any products bearing the offending trade marks. The respondent No. 1 by its letter dated 26th June, 1981 replied claiming that the said trade mark "Ananta" and the "Hammer Brand" were their distinctive trade marks which they had been unsing over three years. According to the respondent No. 1, on comparison of the respective marks there were differences in them and nobody could be misled and/ or confused in selecting the article intended to be purchased. The respondent No. 1 refused to comply with the request made by the petitioner. On 26th June, 1981 the respondent No. 1 filed an application for registration of its trade marks under the name of "Hammer Brand" and "Ananta Hawai" with a crossed "Hammer" within the circle. Pursuant to the application an advertisement was issued in the Dainik Basumati under Section 20(1) of the Trade and Merchandise Marks Act, 1958 before acceptance.