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Judgment
S. Usha, J
The original appeal arises out of the order dated 30.3.2007 dismissing the opposition No. KOL-217834 and allowing the application No. 1326200 in
class 5 to proceed to registration after amending the goods, passed by the Deputy Registrar of Trade Marks. The respondents herein filed an
application for registration of the label mark consisting of the word Sense on 16.12.2004 under No. 1326200 in class 5. The mark was proposed to be
used on the date of application. The mark was advertised before acceptance in Trade Marks Journal No. 1335 dated 01.10.2005 at page 226.
The appellants opposed the registration on the ground that they are in the business of medicinal and pharmaceutical preparations for several years.
They are using the trade mark ""Sensur"" and are registered properties of the trade mark Sensur under No. 367409 B as of 10.10.1980 They are using
the trade mark Sensur since the year 1982. Their trade mark is well known. It is openly, continuously and extensively used since then. The registration
would definitely cause confusion and description among the trader and public and would be in continuation of the provisions of Section 11 of the Act.
The dishonest adoption of the impugned trade mark is only to earn profit on the goodwill and reputation enjoyed by the appellants. The respondents
cannot claim any proprietary right under Section 18 of the Act.
The respondents denied the various objections and submitted that they had adopted and used the trade mark only after obtaining drug license.
On completion of the pleadings the Deputy Registrar heard the matter and passed the impugned order.
The applicants (respondents) are using the trade mark in tablet form whereas the opponents (appellants) are using the trade mark in the form of
liquid and ointment. On comparison of all the facts and circumstances of the case and in view of the judicial pronouncements the two rival marks
cannot be held to be deceptively similar. When the rival marks are held not to be deceptively similar and in view of the fact that the respondents are
using the trade mark after obtaining drug license in the State of Orissa, they can claim proprietary right under Section 18 (1) of the Act. The
respondents to file necessary application to restrict their use only for the State of Orissa and after Notification in the Trade Marks Journal, the trade
mark be registered and the opposition is therefore dismissed.
Being aggrieved by the said order, the appellants are before us on appeal.
The respondents were served with the appeal papers as early as 2007 but had not filed their counter statement till the date of this final hearing.
They were not present on the date of hearing. The respondents were therefore set ex-parte. We heard the learned counsel for the appellants.
The learned counsel for the appellants reiterated whatever was stated in the grounds of appeal.
We have gone through the pleadings and documents and have also considered the appellants arguments.
The rival marks are ""Sense"" and ""Sensur"". The mark ""Sense"" applied for registration is used in tablets which are consumed by pregnant women.
The mark ""Sensur"" whereas is an oil/pain relief lotion (Roll on).
The respondents have in fact restricted their sales only to the State of Orissa. In our considered view, the medicines used are for different
ailments. The appellants are in the form of tablets, whereas the respondents are in the form of oil. The respondents mark ""Sense"" is in the form of
tablets prescribed for pregnant women. In that case, we do not think there could be any confusion among the public. The appellants' medicines are in
the form roll on which definitely cannot be mistaken for the tablets.
In our considered opinion, we do not think it necessary to interfere with the impugned order.
Be that as it may, we do not have the benefit of hearing the respondents. The respondents were directed by the Registrar to file TM-16 Form for
restricting the sale to the State of Orissa. As the respondents did not represent, it is not clear as to whether the request has been filed or not. In such
circumstances, we think it necessary to direct the Registrar to ascertain as to what steps have been taken by the respondents. If no steps have been
taken till date (more than 6 years have lapsed since the date of order), the application may be treated as abandoned. If the request in Form TM16 has
been filed, the Registrar is to notify the same and deal the application in accordance with law. The Registrar may decide the same untrammeled and
uninfluenced by any of the observations stated above. The appeal is disposed of in the above terms. There shall be no order as to costs.