Ab Initio Software Corporation A Delaware Corporation vs Assistant Registrar Of Trade Marks

S. Usha, J

The Appellant herein had filed an application for registration of the trade mark ""CO-OPERATING SYSTEM"" under application No. 1363637 in

class 9 in respect of computer software for enabling communication of data between computers running on different operating systems on 14.06.2005

claiming user as proposed to be used. The application was examined and an examination report was communicated to the Appellant's counsel

objecting to the acceptance of the application under Section 9 of the Trade Marks Act, 1999 (hereinafter referred to as the Act). The Appellant's

counsel sent a reply requesting for a personal hearing. The Registrar of Trade Marks heard the Appellant's counsel and passed the impugned order on

the finding that cooperation system in respect of computer software was descriptive of goods and the same was not capable of distinguishing the

Appellant's goods from the goods of others and had refused registration under Section 9 of the Act. The Registrar had also made an observation that

the registrations relied upon by the Appellants in foreign countries would not support their case as there was a disclaimer condition imposed in the

registration which was granted in foreign countries.

Aggrieved by the said order, the Appellants are before us on appeal. The grounds of appeal are as follows:

(a) the Respondent erred in rejecting the application without giving an opportunity of being heard which is in violation of principles of natural justice;

(b) the Respondent had not taken into consideration the arguments that the subject mark does not designate the kind of goods in respect of which the

registration was sought;

(c) the Respondent's order is in violation of principles of natural justice and provisions of the Act; and

(d) the Respondent erred in not allowing the application to proceed to advertisement.

The matter came up before this Appellate Board on 26.02.2010. Ms. Aga Aravind, learned Counsel appeared on behalf of the Appellant and none

appeared for the Respondent.

We have heard the counsel for the Appellant. The learned Counsel for the Appellant submitted that the mark was not descriptive and hence was

not barred under Section 9 of the Act as is being observed by the learned Registrar and prayed that the application be proceeded for advertisement.

We have heard and considered the arguments of the counsel for the Appellant. We agree with the finding of the Assistant Registrar that the

impugned trade mark ""CO>OPERATING SYSTEM"" is descriptive of goods and is not capable of distinguishing the Appellant's goods from goods of

others. The mark has not acquired distinctiveness before the date of application as it was only proposed to be used as on the date of application. The

mark was, therefore, refused registration under Section 9 of the Act.

The other ground was that the similar mark is registered in other foreign countries. Registration in other countries can not be a valid ground for

obtaining registration on India for the reason we are not aware as to under what facts and circumstances the mark was registered there.

We see no merits in the appeal. The appeal is hence dismissed with no order as to costs.