RAJASTHAN SNUFF FACTORY BEAWAR Vs. GORDHAN CO

JUDGEMENT

(1.) THIS is an appeal under section 108(3) of the Trade and Merchandise Marks Act, 1958 (Act 43 of 1958), from an order dated September, 3, 1963, of a learned Single Judge refusing an application by the appellant, Rajasthan Snuff Factory, for rectification and cancellation of any entry in the register of trade mark in respect of Trade Mark No. 2245 of respondents I to 4, Gordhan Company, Misrilal Gordhanlal, and Misrilal Arora and Gordhanlal Arora as proprietors of the first named two respondent firms. The learned Judge has dismissed the application with costs. The respondent's registered trade mark No. 2245 consists of the device of a parrot sitting on a branch of a tree and was registered, according to the written statement filed by the Assistant Registrar of Trade Marks, as of the date July 22, 1942, in respect of snuff in class 34 in the name of Misrilal Arora and Gordhan Lal Arora, respondents 3 and 4, trading as SitaramMisrilal, Beawer, Rajasthan. In the application for registration the registered proprietors of this trade mark had claimed that the mark had been in use for 10 years prior to the date of their application. THIS registration has been renewed for a period of 15 years from July 22, 1949. On a request made by the registered proprietors in August, 1957, the entry in the register of trade marks relating to their trading style was altered to read as 'Gordhan Company'. The application for alteration of the entry in the trade marks register in regard to the trading style of the respondents was made in August 1957, from Sitaram-Misrilal to (1) Gordhan Company, and (2) Misrilal Gordhanlal, but it was accepted in regard to Gordhan Company. After the decision of this case it has also now been accepted in regard to Misrilal-Gordhanlal.

(2.) ON June 18, 1958, the appellant-firm applied for registration of their trade mark with the label 'Tota Chhap'. Their allegation was that the predecessors-in-title of their firm introduced a trade mark for the manufacture and sale of snuff under the name of 'Maniwala Tota Chhap' with a label or trade mark consisting of a device of a 'parrot sitting on a branch of a tree with beads in the beak printed in green colour on white paper with red border. The appellant-firm have been using that trade mark since the year 1956. Their application having been duly advertised in the Trade Marks Journal, the respondents lodged a notice of opposition. They also brought an infringement action user section 12(3) of the Act against the appellant firm, which is pending. It is in consequence of those proceedings that the appellant-firm made an application under sections 46, 56 and 107 of Act 43 of 1958 for rectification of the entry in the Trade Marks Register and concellation of the registered trade mark of the respondents.

(3.) THE first argument that is urged on behalf of the appellant-firm is that the respondents have never used their trade mark No. 2245 in an as much as snuff with that trade mark has not been marketed by Gordhan Company. Initially the respondents' trademark has been registered in the name of Misrilal Arora and Gordhanlal Arora, respondents 3 and 4, trading in the style of Sitaram-Misrilal. Those two respondents were the partners and owners of that firm Its name has subsequently been changed to Misrilal-Gordhanlal and the same parties are also trading in the style of Gordhan Company. So that it is the same respondents who have been marketing their snuff under trademark No. 2245 and the change in the name of the firm does not mean that they have never used that trade mark in marketing their goods. In this respect thus the conclusion of the learned Judge is not open to exception and this argument on behalf of the appellant-firm cannot possibly succeed.