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Judgment
S. Usha, J
Appeal arises out the order dated 11th August, 2008 passed by the Assistant Registrar of the Trade Marks refusing registration of the Trade Mark under Section 9 & 11 of the Trade Marks Act, 1999 (hereinafter referred to as the Act).
The Appellant herein filed an application for registration "BOND MASTER" under application No. 833458 in class 1 in respect of 'Speciality adhesives, including water based, solvent based, hot melt and reactive adhesives on 22nd December, 1998 as a proposed to be used mark. The said application was examined and the examination report containing the objection as to the acceptance of the registration was communicated to the Appellant's counsel. The Appellant herein send their reply to the objections and requested for a personal hearing. The matter was set down for hearing and the Registrar passed the impugned order on the finding that the trade mark "BOND MASTER" as a whole was descriptive of goods and the same was not capable of distinguishing the applicant's goods from the goods of others. And therefore, the registration was barred under Section 9(1)(a) & (b) of the Act. The other finding was that since the identical/similar trade mark in respect of the same/similar goods was already on record and that there exists likelihood of confusion, the registration was barred under Section 11(1) of the Act. Aggrieved by the said order, the Appellant's filed the above instant appeal. The grounds of appeal are as follows
(i) the Respondent erred in rejecting the application without giving the applicant an opportunity of being heard, which is in violation of principles of natural justice;
(ii) the Respondent failed to take on record, the arguments that the Appellant submitted that the cited conflicting was no longer valid;
(iii) the Respondent's order is in violation of established principles of law, judgments and provisions of the Act;
(iv) the Respondent erred in not allowing the application to proceed to advertisement.
We have heard counsel for the Appellant Ms. Aga Anand, Learned Counsel for the Appellant submitted that the conflicting mark which was shown on the examination report was valid only till 2004 and was not subsequently renewed which fact was not taken note by the Registrar while passing the impugned order. The counsel further submitted that the mark was not descriptive and was not barred under Section 9 of the Act. As the conflicting mark was not valid as on the date of hearing, the objection under Section 11 of the Act was also not maintainable. The counsel prayed that the appeal be allowed directing the Registrar to proceed the application to advertisement.
We have heard and considered the arguments of the counsel for the Appellants. We are inclined to agree with the finding of the Registrar that the trade mark "BOND MASTER" is descriptive and the same is not capable of distinguishing the Appellants goods from others goods. Moreover, the mark was proposed to be used as on the date of registration and such the mark was not distinctive. The mark was therefore refused registration under Section 9 of the Act.
As regards refusal of registration under Section 11 of the Act, there was already an identical mark on the register, which no doubt would cause confusion among the public as the goods are also identical. There was therefore a bar under Section 11 of the Act.
After having averred in the appeal that a personal hearing was given and the Appellants have made their submissions to the objection that the mark is distinctive and is registered in various countries, the ground that no opportunity was personal hearing is not tenable. The ground that the mark is registered in various countries is also not maintainable.
The appeal is dismissed as we find no merits in the appeal without costs.