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Judgment
S. Usha, Technical Member
1 . Appeal is arising out of the order dated 08.04.2008 passed by the Deputy Registrar of Trade Marks disallowing the Opposition No. MAS. 198398
and allowing the application No. 721262 in class 30 to proceed to registration. The appellant herein has filed the above miscellaneous petition under
Section 95 of the Trade Marks Act, 1999 to stay the operation of the impugned order pending disposal of the main appeal.
2 . The petitioner herein filed the petition for stay stating that the respondent No. 2 has not considered the fact that the respondent No. 1 had not
produced any documentary evidence to prove their case. The petitioner further stated in the petition that they have established a prima facie case
which has not been considered by the respondent No. 2 and that balance of convenience is in favour of the petitioner in granting an order of stay and
if no stay is granted they would be put to serious loss and hardship.
The respondent No. 1 herein did not file their counter to the miscellaneous petition but advanced their arguments.
4 . The matter came up before us on 19.02.2009. Learned Counsel Shri N.K. Manchanda appeared on behalf of the appellant and Shri S.
Balachandran, learned Counsel appeared for the respondent No. 1.
The Counsel for the petitioner contended that the impugned order was contrary to law. The Counsel further argued the main appeal on merits and
relied on various judgements. The Counsel submitted that the trade mark ""SWAD"" was all handwritten in the invoices produced by the respondent No.
1 before the Registrar i.e. the respondent No. 2 and the same has been wrongly considered by the Registrar.
6 . The Counsel for the respondent No. 1 contended that the impugned order was rightly passed by the respondent No. 2. The application for
registration was allowed for registration and the order was passed as per the provisions of Section 12 of the Trade Marks Act 1999 under special
circumstances.
We have heard and considered the arguments of both sides and have perused the impugned order. The rival marks i.e. ""SWAD"" are identical and
the goods also fall under the same class namely, class 30. As the rival marks are identical and goods being cognate and same trade channels, we are
of the view that the petitioner's interest are to be protected by grant of an order of stay.
8 . We are of the opinion that by granting an order of stay and the registration certificate not issued, the respondent No. 1 will not be restrained from
using his trade mark and hence will not be affected in any manner. We, therefore, stay the operation of the order and direct the Registrar of Trade
Marks not to issue the registration certificate in application No. 721262 in class 30 until further orders.
Miscellaneous petition No. 73/3008 is disposed of in the above terms without any order as to costs.