9911796707
TMI Blog2013 (12) TMI 288X X X X Extracts X X X X X X X X Extracts X X X X ..... nt No.1 on the ground of non-usage for a period in excess of five years. The application was allowed by the Registrar vide order dated 18.6.1992 and the entry in respect of registered trademark 274006 in Class 30 registered in the names of Respondent No.1 was modified by amending the specification of goods to read as "Rice for sale in the cities of Faizabad, Maunath Bhanjan, Jaunpur, Shahganj and Agra in the State of Uttar Pradesh". Respondent No.1 therein then filed an application for review of the order dated 18.6.1992 which was partly allowed vide order dated 15.02.1993 by Assistant Registrar, adding the town of Saharanpur in the State of Uttar Pradesh, in which Respondent No.1 was allowed to use his trademark. Consequently Respondent No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Division Bench of the Delhi High Court passed a common order on 15.05.2007 upholding all the findings recorded by the learned Single Judge. 6. Appellant herein then preferred three Special Leave Petitions. SLP (C) NO.15496 of 2007 was preferred against the order in OCJA No.6 of 2003, SLP(C) No.18213 of 2007 was preferred against the order in OCJA No.5 of 2003 and SLP(C) No.18212 of 2007 was preferred against the order in Contempt Application No.928 of 2006. 7. The appellant has urged in the appeal that the High Court has committed an error in permitting the second respondent to use the trademark "KOHINOOR" in the entire State of Uttar Pradesh, especially in the wake of the registration of trade mark in favour of the appellant under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... user of the trademark by the respondent. Learned counsel also pointed out that the geographical limitations incorporated by way of an amendment are based on practical consideration of facts and trade practices. The impugned order was passed by the High Court noticing that the respondent has been using the trademark "KOHINOOR" since the year 1961 and had obtained the registration thereof in the year 1971 and that the appellant got registration only subsequently on 24.2.1981. 9. We notice, the appellant herein applied for registration of trademark "KOHINOOR" only in July, 1985. The application was allowed and the trademark was advertised in Trademark Journal in 1985. Yet another application was filed by the appellant for registration of tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... application; or (b) that up to a date one month before the date of the application, a continuous period of five years or longer had elapsed during which the trade mark was registered and during which there was no bona fide use thereof in relation to those goods by any proprietor thereof for the time being: Provided that, except where the applicant has been permitted under sub- section (3) of section 12 to register an identical or nearly resembling trade mark in respect of the goods in question or where the tribunal is of opinion that he might properly be permitted so to register such a trade mark, the tribunal may refuse an application under clause (a) or clause (b) in relation to any goods, if it is shown that there has been, before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed during which the trademark was registered and during which there was no bonafide use thereof in relation to the goods for which it was registered by the proprietor for the registered trademark. Onus to prove non-use rests upon the applicant who has filed the application for rectification. Of course, it is sufficient that the applicant who has filed the application for rectification to give prima facie evidence for non-use of the mark during the relevant period of five years from the date of one month before the date of the application for rectification. Once it is prima facie shown, then the onus shifts to the registered proprietor to prove the use of the trademark during the relevant period. 12. The scope of the above-mentioned provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Bench has also found no error in the inclusion of another District also for selling the rice and later extending the benefit of the trademark to the respondents to the whole State of Uttar Pradesh. Cogent reasons have been stated for extending the trademark so far as the respondents are concerned in the whole of the State of Uttar Pradesh. It was pointed out that restricting the trademark to few cities would create lot of complications and litigations as to the exact boundary of a particular city or District. It will also be impossible for the respondents to ensure that its products are not sold to retailers outside the six cities. Putting geographical restrictions was rightly held to be unjust. In our view, reasons stated above cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
