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Judgment
S. Usha, J
Appeal arises out the order dated 18th March, 2008 refusing registration of the application in terms of objection under Section 9 & 11 of the Trade
Marks Act, 1999 (hereinafter referred to as the Act).
The Appellant herein filed an application for registration of trade mark SUN FRESH (label) under No. 1034480 in class 29 in respect of Refined
sunflower oil on 6th August, 2001. The mark was claimed to be proposed to be used on the date of application. The application was duly examined
and the examination report was communicated to the Appellant's agent. After hearing the counsel for the Appellant, the application was refused
registration on the ground that the impugned mark had a direct reference to the character and quality of goods in question and therefore it is devoid of
any distinctive character and the evidence filed by the applicants in support of use since the year 2002 is not sufficient in itself to overcome the
objection to its registrability under Section 9 & 11 of the Act. The mark was claimed as proposed to be used mark on the date of application. An
identical mark was already on the register for the same and similar specification of goods which are already registered prior to the impugned
application and therefore mandatorily prohibited under Section 11 of the Act.
Aggrieved by the said order, the Appellant's are before us on appeal. The Appellant's herein are one of the largest companies operating in the field
of manufacturing and marketing of refined sunflower oil. The Appellant has been using the said trade mark SUN FRESH since the year 2002. As on
the date of application in the year 2001, the mark was proposed to be used mark. The main grounds of appeal are as follows
(i) the Respondent erred in rejecting the application without giving the Appellant an opportunity of being heard, which is in violation of principles of
natural justice.
(ii) the Respondent failed to take on record, the mark cited in the examination report was in respect of different goods and as such there could be no
confusion or deception.
(iii) the Respondent failed to take on record, the documents filed along with affidavit at the time of hearing.
(iv) the Respondent's order is in violation or principles of law and provisions of the Act.
(v) the Respondent erred in not allowing the application to proceed to advertisement.
We have heard counsel for the Appellant Shri A. Vijay Anand, Learned Counsel for the Appellant drew our attention to the impugned order at page
14 of the type set of papers filed along with the appeal and submitted that though the application was refused registration under Section 9 & 11 of the
Act, but no specific finding was given to that effect. The counsel further submitted that there was no direct reference to the goods and so it was not
prohibited registration under Section 9 of the Act. The counsel relied on the judgments reported in 1996 (16 PTC 512 SC) Vishnudas trding as
Vishnudas Kishendas v. Vazir Sultan Tobacco Co. Ltd. for his contention that though there was already an identical mark on the register for a
different goods refusal of registration for the impugned trade mark for different goods was not valid. The counsel therefore prayed that the order be
set-aside and the application be proceeded for advertisement.
We have heard the counsel for the Appellant and have considered the same. The 1st ground of appeal was that the Appellant was not given an
opportunity to be heard does not hold good as the Appellant themselves have stated in para 4(iv) of the appeal that ""the application was set down for a
personal hearing on 7th January, 2009"". With regard to the objection under Section 9, the Appellant submitted that the trade mark ""SUNFRESH"" does
not have direct reference to the character or quality of the goods"".
We agree with the finding of the Registrar that the impugned maker has a direct reference to the character and quality of goods in question and
therefore it is devoid of any distinctive character. The impugned trade mark had not acquired distinctiveness as it was a proposed to be use mark on
the date of application.
As regards the objection under Section 11 of the Act is concerned, the conflicting mark seen in the examination report was registered even prior to
that of the applicants ie. the Appellants for similar goods which is likely to cause confusion or deception.
In view of the above, we do not find any merit in the appeal and is liable to be dismissed. The appeal is therefore dismissed with no order as to
costs.