Ashok Leyland Limited vs Veekay Enterprises And Ors

K.N. Basha, J

1 . The challenge in this appeal is to the order dated 28/04/2004 passed by the Assistant Registrar of Trade Marks, New Delhi dismissing the Opposition No. DEL-T-2375/57600 and consequently allowing the registration of the first respondent/applicant before the Registrar in application No. 594995 in Class 12.

2 . Ms. Ruchi Singh, the learned counsel for the appellant would contend that the appellant is the prior adopter and prior user of the impugned trade mark VIKING in Class 12 in respect of Chassis in respect of buses. The learned counsel would submit that they are using the said trade mark right from the year 1976 and they have also produced the documents in support of their claim by filing interlocutory petition which was also allowed by the Registrar of Trade Marks and those documents have been taken on record.

3 . It is further contended that the respondent herein has claimed the user only from the year 1986. The learned counsel would further submit that they have also produced the orders placed by the companies for the supply of chassis and also produced the delivery receipt. It is contended that till the year 1986 the appellants/opponents have sold 26,140 chassis. The learned counsel would contend that by passing the impugned order, the Assistant Registrar has simply overlooked the materials and documents produced by the appellant herein and considered the documents filed by respondent alone, therefore, it is submitted that the impugned order is liable to be set-aside.

Per contra, Mr. M.K. Miglani, the learned counsel would contend that the respondent has claimed the user from the year 1986 by honestly and bonafidely adopting the impugned trade mark VIKING. It is contended that the respondent/applicant produced several documents to substantiate their claim of use including the sales invoices from the year 1986-93. It is contended that the application filed for registration of impugned trade mark as early as 1993 and as such the respondent/applicant has filed the documents up to the year or filling the application for registration of the impugned trade mark. It is also pointed out by the learned counsel for the respondent that they also earlier registered the impugned trade mark VIKING in respect of class 7 under No. 476514 in respect of belts carbon brushes, bearings, pistols and filters which are automobile parts. It is submitted that only subsequent to the filing of the application for registration by the respondent herein, the opponent namely the appellant filed their application in the year 2000 and they have not produced even a single document of sales invoices except filing some correspondences relating to placing orders for the supply of chassis and a delivery receipt and they have not filed any document prior to 1993. It is specifically contended by the learned counsel for the respondent that the appellant has not filed any single document from the year 1977-94 for a period of 20 years to substantiate their claim of prior adopter and user. Therefore, it is contended that there is no infirmity or illegality in the findings rendered by the Assistant Registrar in the impugned order.

We have given our careful and anxious considerations to the rival contentions put forward by either side and also perused the entire materials available on record including the impugned order passed by the Assistant Registrar of Trade Marks.

6 . At the out set, it is to be stated that the appellant/opponent have not filed any substantive document in proof of their claim of prior use or prior adoption at the time of filing the opposition and thereafter they have filed an interlocutory application to file certain documents to establish their claim. It is seen that the said interlocutory application was allowed by the Assistant Registrar of Trade Marks and certain documents have been annexed by the interlocutory application and the perusal of the same reveals that the appellant has not filed even a single sales invoice to substantiate their claim of prior use right from the year 1976 as claimed by them.

7 . It is pertinent to note that the perusal of the additional documents filed by the appellant/opponent reveals that there are only communications between the appellant and other companies under solitary documents of delivery certificate and there is absolutely not an iota of evidence adduced by the appellant/opponent to establish their continuous business by producing the relevant documents by using the impugned trade mark VIKING.

8 . The perusal of the impugned order would reflects that the Assistant Registrar has taken into consideration of overwhelming documents filed by the respondent herein to substantiate their claim of prior use and prior adoption in respect of the impugned trade mark VIKING. It is seen that the respondent/applicant established that they have honestly and bonafidely adopted the impugned trade mark right from the year 1986 and they have filed documents to substantiate their claim till the year 1993-94 that is the year on which they have presented their application for registration of the impugned trade mark. At this juncture, it is also relevant to mention that the nature of goods are also not identical as the appellant/opponent is claiming use only in respect of chassis to be used for the busses alone. It is also to be borne in mind by us that the appellant/opponent has not at all claimed the use of the impugned trade mark for any automobile parts.

We are of the considered view that the Assistant Registrar has also rightly observed that the respondent/applicant or even otherwise entitled for registration under Section 12 of the Trade Marks Act by virtue of honest and concurrent user and they has rendered a specific finding that the respondent/applicant are the prior adopter of the mark VIKING.

The Assistant Registrar also taken into consideration of the earlier registration of the impugned trade mark by the respondent in class 7 under No. 476514 in respect of automobile parts. Considering in any angle, we are unable to see any infirmity or illegality warranting our interference in the impugned order passed by the Assistant Registrar. Accordingly, the appeal is dismissed.