Radiant Silk Mills (P) Ltd. vs Sanjay Weaving Mills Private Limited.

Pawan Kumar Panday, Asst. Registrar of Trade Marks

This proceeding relates to an opposition filed by M/s. Sanjay Weaving Mills Private Limited, Amritsar, Punjab filed against registration of trade mark TOTREX (label) under application No. 8S4132 in class 24. Briefly, the facts of this case are that above named applicants filed an application under No. 884132 in class 24 for registration of trade mark TOTREX (label). After examination the said application was ordered to be advertised before acceptance and advertised in TMJ No. 1 (Special Supplementary Vol. D) dated 14.6.2003. The above named opponent filed the notice of opposition on 21.7.2003 on the ground that they are engaged in the business of suiting, shirting''s and dress materials since 1993 and using a trade mark TOTREX since then extensively. The opponent further stated that they are the prior adopter, promoters and are also the registered proprietor of the said mark under No. 616369 in class 24. The said registration is valid and subsisting. The opponent stated that on account of extensive use of the aforesaid trade mark the opponent have gained enviable goodwill and reputation in the market. The opponent also stated that the impugned mark of the applicant is visually and phonetically identical with their prior registered trade mark and the goods of impugned mark are also same as that of the opponent. The opponent took objections under sections 9, 11 & 18 of the Act and also prayed for the refusal of the impugned application.

2 In the counter statement dated 27.11.2003 the applicant stated that they have honestly adopted the trade mark TOTREX and using the same on their products fabrics, textiles and are carrying on an established business of manufacturing and marketing the above goods. The applicant stated that they have adopted the trade mark TOTREX in the year 1991 and applied for registration of the same and the Hon''ble Registrar has passed an order for advertisement before acceptance. The applicant further stated that they have adopted the trade mark by taking eye catching common fonts which are common to trade and the opponent are not the creator of such fonts. The applicants denied the contentions raised by the opponent in their notice of opposition. Finally the applicant prayed that the opposition be dismissed and application be proceeded for registration.

In the instant case the opponent as well as the applicant have not adduced any evidence in support of their respective claims and have merely relied on TM-5 & TM-6 respectively.

Accordingly the matter was fixed for hearing and finally came before me for hearing on 13.2.2012 when Shri Gaurav Arora Advocate appeared for the opponent and argued the matter.

5 None appeared for the applicant. Hearing concluded on the same day and order reserved.

I have gone through the records of present proceeding and also considered the arguments advanced by Ld. Advocate for the opponent. In the present matter rival goods are identical/similar. The rival trade marks are also identical/similar. Moreover the rival marks convey the same idea. Applicant has also failed to give proper justification for adoption of impugned trade mark by them and there is no evidence of the actual user of their mark. On the other hand the opponent has been able to prove their prior adoption and registration.

In view of the above I am of the clear opinion that opponent has a better right than applicant. Applicant''s mark is not distinct within the meaning of section 9 and objectionable u/s 11 of the Act. The applicant also cannot be said to be the proprietor of the impugned mark within the meaning of section 18 of the Act. It is, therefore, ordered that opposition No. 110374 is allowed and application No. 884132 n class 24 refused registration. There shall be no order as to the costs of these proceedings.

Signed and sealed at Ahmedabad this 30th day of March, 2012.