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Judgment
Prabha Sridevan, J
1 . The applicant is for the owner of the mark PEP-UP, in Application No. 532022 in class 5. The application is dated 25.06.1990. The mark is used in
respect of medicinal and pharmaceutical preparations for human consumption. The applicant is aggrieved by the registration of the mark PEP-PUP in
class 5 in the name of the respondent and seeks rectification.
2 . The case of the applicant is that they conceived and adopted the mark in 1990. They have used the mark continuously and uninterruptedly since
then. They have spent huge amounts towards advertisement and built a considerable reputation. According to the applicant, the adoption of the
impugned mark by the respondent is dishonest. The applicant's mark is prior in adoption and user. To support that the applicant marked the registration
certificate of PEP-UP as Exhibit-A and their sales turnover together with invoices from 1990 to 2008 as Exhibit-B.
3 . On 28.10.2008, the respondent Shri K.N. Rajesh proprietor filed an affidavit stating that the signature in the AD card which accompanied the Form
C was not his, and wanted fresh Form C to be issued and sought time to be granted for filing counter statement. Though Counsel has appeared for
him on several occasions, no counter statement has been filed. The respondent has not availed of the indulgence shown by this Board since 2008 till
now. When the matter was listed on 12.07.2011, no one appeared for the respondent. We have heard the learned counsel for the applicant.
4 . The learned counsel for the applicant submitted that PEP-UP and PEP-PUP are phonetically and visually identical and the adoption is dishonest.
He submitted that the averments stood unchallenged. He relied on several decisions.
The impugned trademark is PEP-PUP a word mark under No. 1107893 in class 5 in respect of veterinary preparations. The application is dated
29.05.2002. The user claimed is from 31.12.1994. It was advertised in Journal No 1329 Supp (1) dated 15th April 2005.
6 . The applicant has proved user from 1990, by producing invoices. So the user of the applicant is prior to the respondent's alleged user from 1994.
The applicant's registration is also earlier.
In 2004 (29) PTC 654 - Solvay and Cie Vs. Mexin Medicaments Private Limited and Ors. -the impugned mark was SOLVAY. It was held to be
similar to SOLVIN.
In 2005 (31) PTC 116 - Ranbaxy Laboratories Ltd. Vs. Vets Farma (Private) Ltd. & Ors. -the impugned mark was LEVASOL. It was held to be
similar to LEMASOL.
In both the matters above, the impugned mark was used in respect of veterinary products whereas the person aggrieved was dealing in medicines
for human consumption. They apply totally to this case. On facts and on law the appellant deserves to succeed. The application is allowed and the
impugned mark PEP-PUP is struck off from the register.