AI Structured Summary
Not yet generated for this judgment
Judgment
Z.S. Negi, J
1 . The applicant has filed this application for removal of Trade Mark GANGA, registered under No. 1276380 in class 21, from the Register of Trade
Marks or rectification of the Register under Section 47/ 57/ 125 of the Trade Marks Act, 1999 (hereinafter referred to as the Act).
The brief facts of the case is that the applicant is the sole proprietary concern of Arun Kumar Mehta, carrying on an old business as one of the
leading manufacturers and merchants of containers, utensils, buckets, non-stick utensils and pressure cookers (non-electric) and pressure pans since
the year 1998 and ever since the inception of the said business he is manufacturing and marketing the said goods as the proprietor of trade mark
SHREE GANGA. The trade mark SHREE GANGA has bee continuously, extensively and uninterruptedly used that too within the knowledge of
respondent No. 1, without any hindrance whatsoever in the course of trade; thus it has come about to be identified and recognized the said trade mark
with the aforementioned goods as exclusively belonging to the applicant and none else and the applicant have the exclusive right to the use of trade
mark SHREE GANGA to the exclusion of others. The applicant's aforementioned goods are of standard quality and are sold by affixing the
specification of the Indian Standard Institute, the ISI certificate No. IS : 2347 granted by that Institute in the year 2001.
Averment is made that for the purpose of obtaining statutory right over the trade mark SHREE GANGA, the applicant applied for registration
thereof in respect of the aforementioned goods in class 21 under application No. 1101745 dated 3.5.2002, which was ordered on 29.9.2006 to be
advertised in the Trade Marks Journal. The applicant is likely to become the registered proprietor of trade mark SHREE GANGA in respect of the
aforementioned goods on account of honest concurrent user. The applicant claims that its trade mark in respect of the manufacture and merchandise
of its goods has already become distinctive and associated with the said goods on account of its prior adoption and continuous user after such adoption
and the trade and public at large associate the trade mark SHREE GANGA to the applicant in respect of aforementioned goods. The applicant's
business is stated to be dependant on its trade mark SHREE GANGA and it has made substantial sales turnover which runs in several lakhs of rupees
every year. The applicant claimed to have widely advertised its trade mark through different media such as distribution of trade mark literatures,
handbills and gifts and have spent substantial money on publicity and due to this the trade mark enjoys solid and enduring reputation and goodwill in the
market.
It is averred that the respondent No. 1 is engaged in the same/similar business as that of the applicant, inter alia, as merchants of domestic utensils
and containers (included pressure cookers), manually operated apparatus for grinding, mincing, grating, shredding and cutting, parts and fittings for all
the aforementioned goods under the trade mark GANGA. The respondent No. 1 sought registration of trade mark GANGA under application No.
934655 in class 21, which was advertised in the Trade Marks Journal No. 1307(2) and registration thereof is likely to be refused as the registration is
opposed by a third party. On receipt of notice of opposition by the respondent No. 1, it filed a subsequent application No. 1276380 dated 2.4.2004 for
registration of GANGA in respect of the aforesaid goods by giving a false and frivolous address at the time of filing such application. The respondent
No. 1 has played a fraud upon the Trade Marks Registry by showing false trade address to obtain registration and also without disclosing the
opposition to its application No. 934655. It is stated that the applicant in the second week of July, 2005 he came to know about respondent No. 1's
illegal and wrongful advertisement, appearing in various Newspapers circulating in the State of Andhra Pradesh, with a view to defame the applicant's
established business and thereupon the applicant sent legal notice dated 11.7.2005 to respondent No. 1 stating that it has committed an offence under
Section 500 of the IPC and calling upon him to refrain from advertising the trade mark GANGA/SHREE GANGA in any print media commenting that
the applicant is th duplicator of the trade mark SHREE GANGA and the advertisements appearing in the Newspapers be withdrawn immediately. The
respondent No. 1 replied to his legal notice through its counsel's letter dated 23.7.2005 not only denying all the allegations but not disclosed about
pending application No. 1276380 for registration in respect of the aforesaid goods included in class 21. The respondent No. 1 is thus guilty of
concealment of material fact that application No. 1276380 in class 21 is pending for registration of trade mark GANGA in respect of the aforesaid
goods.
Claiming to be the person aggrieved, the applicant has sought the removal of the impugned trade mark on the grounds, inter alia, that the impugned
word/mark GANGA is commonly used in relation to the impugned goods and business and can be termed as famous name of God Mother and is an
ordinary dictionary word forming part of day to day language usage in Pojja; that the impugned trade mark has not acquired any distinctiveness qua
respondent No. 1, that is to say, it fails to identify the impugned goods of the respondent No. 1; that the user of impugned mark claimed in relation to
the impugned goods is wrong; that the respondent No. 1 is wrongly claiming its rights in the impugned trade mark, as no such rights exist with it; that
the registration of the impugned trade mark is contrary to the provisions of the Act; that the respondent No. 1 has obtained the impugned trade mark
registration fraudulently and by making misstatement and, by making misrepresentation as a manufacturer; that the impugned entry in register has
been made without any sufficient cause and is wrongly remaining on the register and that while allowing the application to be advertised, the
respondent No. 2 ought to have issued cross notice for the same to the applicant herein under the provisions of the Act.
6 . Mr. Devinder Kumar Singhal, constituted attorney for the respondent No. 1 filed counter-statement to the application denying the material
averments made in the application. It is stated that M/s. Vijaya Enterprises was the sole proprietorship concern of Mr. B. Murlikrishna; Mr.
Murlikrishna died on 6.3.2007 leaving behind his wife Mrs. Batulla Satyavathi and two daughters as legal heirs but both the daughters relinquished
their title, interest and property (including the trade marks) in favour their mother, Mrs. Battula Satyavathi and the succeeding legal heir Mrs.
Satyavathi executed General Power of Attorney in favour of Mr. Singhal authorizing him to represent the respondent firm in all the legal proceedings.
The respondent No. 1 is carrying on the business of manufacturing, trading and marketing in electrical and electronic apparatus and instruments
including radio, television, audio and video apparatus, computers and recorded computers, software, electric gas lighters, iron boxes and flat iron for
ironing clothes, parts and fittings for all the aforementioned goods. The respondent No. 1 has resources and intent to diversify into other business
activities to allied and cognate goods and it has already exhibited its intent by manufacturing, trading and marketing domestic electric fans of all kinds,
gas lighters, water filters, electric pressure cookers and other cooking apparatus, washing machines, mixies, mixer-grinders grinders (including wet
grinders) food processing machines, washing machines, machines for domestic and kitchen use, domestic utensils and containers (including pressure
cookers), manually operated apparatus for grinding, mincing, grating, shredding and cutting, parts and fittings for all the above mentioned goods and the
said goods are manufactured and/or marketed and/or distributed under the inherently distinctive trade mark GANGA. The respondent No. 1 claims
that for the sake of convenience and save costs it is carrying out its business activities both at Vijaywada and Mumbai. On or about 31.12.1984, the
trade mark GANGA was conceived and adopted by late Mr. B. Murlikrishna (the predecessor-in-business) and commenced the use in relation to the
aforesaid goods from the date of adoption and has been using the same openly, continuously and on a large scale. The predecessor-in-business of the
respondent No. 1, before adoption of the mark, caused a search to be made in the records of the Trade Marks Registry to ascertain whether any
same or similar mark is registered or pending registration and also carried out a market survey to find out whether any alike mark in respect of same
goods as of his is being used by any other trader and only satisfying himself that there is none he adopted the said mark. The predecessor-in-business
of the respondent No. 1 acquired the copyright in the artistic work GANGA registered under No. A-6304/2002 from M/s Vijaya Enterprises Private
Ltd. by virtue of deed of assignment dated 21.8.2006, a request for effecting the changes in the register of copyright is pending with the Registrar of
Copyright, Delhi.
7 . With a view to obtain statutory protection, the predecessor-in-business of the respondent No. 1 made applications in the Trade Marks Registry,
Chennai for registration of the composite label mark having the word GANGA as essential feature represented artistically, under No. 934652 in class
07, 934653 in class 09, 934654 in class 11 and 934655 in class 21 in respect of the aforementioned goods; the same were advertised in the Trade
Marks Journal No. 1307 Suppl. (II) dated 18.11.2003 at pages 296, 346, 414 and 651, respectively, and the registration of the said applications have
been opposed by M/s. Harsha Appliances, Delhi, which are pending and steps are being taken to bring the successors of Late Mr. Murlikrishna on
record in these proceedings. The predecessor-in-business also on 2.4.2004 applied for registration of trade mark GANGA under application No.
1276380 in class 21, in respect of domestic utensils and containers (including pressure cookers), manually operated apparatus for grinding. Mincing,
grating, shredding and cutting, parts of and fittings for all these goods, in the Trade Marks Registry, Mumbai and the Registrar after carrying out
search and satisfying about the proprietary rights, etc. of the applicant, allowed the application to proceed for advertisement subject to association with
application No. 934655 in class 21. After public notice, the same was registered in 2006 and steps are being taken to bring on record the subsequent
proprietor of the said registered trade mark. It is further stated that it is pertinent to note that the applicant though having knowledge of the respondent
No. 1's claim did not file any opposition to registration of the trade mark GANGA. It is claimed that the predecessor-in-business immediately after
adoption of the mark commenced the use thereof and started manufacturing, trading and marketing of the said goods under the distinctive trade mark
GANGA and the said mark has been widely and openly used in the relevant segment of the public up to 6.3.2007 and thereafter has also been used
continuously by the successor. A huge amount is spent on advertising and publicity through different media to promote the trade mark GANGA. It is
claimed that by virtue of long, continuous, extensive and exclusive user for the last more than two decades, the respondent No. 1 has gained immense
popularity in respect of said goods and the word GANGA is associated with the name of the respondent No. 1 and thus GANGA is a well-known
mark in the relevant industry and amongst the relevant section of the people. Respondent No. 1 claims to be the exclusive proprietor and owner of the
trade mark GANGA by virtue of prior adoption and prior use thereof.
The applicant filed rejoinder to the counter-statement filed by the respondent No. 1 mainly stating that the respondent No. 1 or its predecessor is not
the manufacturer as there is nothing on record to show that it is the manufacturer of various goods but it was a distributor of GANGA water filters,
wet grinders, mixies, ceiling fans, pressure cookers, table fans, etc. for the State of Andhra Pradesh upto 6.9.1990 and alleging that the
distributorship/use of the said mark was abandoned since September, 1990 and there is no proof supporting the claimed use up to 6.3.2007, therefore,
the registered trade mark No. 1276380 is liable to be rectified of the register of trade marks. The impugned mark was allowed to be advertised subject
to association with No. 934655 in class 21 against which opposition was pending, in view of this, the granting registration of the impugned trade mark
against the law is invalid; therefore present application is well founded.
9 . The matter came up before us for hearing on 6.2.2009 when Shri V.P. Ghiraiya, Advocate appeared on behalf of the applicant and Shri K.K.
Sharma, Advocate appeared on behalf of the respondent No. 1.
Learned Counsel for the applicant raised certain preliminary objections that the constituted attorney appointed by legal heir of late Mr.
Murlikrishna is not competent and authorised to file counter-statement as nothing is on record declaring by the competent authority or court that Mrs.
Battula Satyavathi is the legal heir and that the power of attorney in favour of Mr. Singhal does not authorize him to contest the application before this
Appellate Board. He stressed that Mr. Singhal has no locus standi to contest the application and the counter-statement filed by him be excluded and
the present application be allowed by passing order for removal of the impugned mark from the register.
Learned Counsel contended that the word or mark GANGA is commonly used in relation to the impugned goods and business and can clearly be
termed as famous name of the God Mother as well as River. No proprietary rights of respondent No. 1 exist in such word or mark and as such the
respondent No. 1 is wrongly claiming the rights in the impugned trade mark GANGA. The impugned mark was not distinctive at the time of
registration nor at the time of commencement this action and has not acquired distinctiveness and it fails to identify the impugned goods of the
respondent No. 1. He went on to contend that it is an ordinary dictionary word and forms part of the day to day language usage in pojja. Therefore,
the mark is not capable of registration unless it has acquired secondary significance by long and extensive user. Contrary to this, the respondent No. 1
did not have any user of the impugned trade mark in relation to the impugned goods when it applied for registration of the mark GANGA as the
respondent No. 1 had abandoned the use of the impugned mark in relation to the impugned goods since the year 1990 and as such the impugned mark
had or has not been used by the predecessor of respondent No. 1 or by the successor in relation to those goods for which registration of impugned
mark has been obtained.
Learned Counsel contended that the respondent No. 1 including its predecessor are guilty of playing fraud upon the Trade Marks Registry as well
as with this Appellate Board by claiming herself or her predecessor to be the manufacturer of domestic utensils, containers (including pressure
cookers) manually operated apparatus, etc. included in class 21. He pointed out that the documents produced by the respondent No. 1 clearly establish
the fact that neither it nor its predecessor was/is manufacturer but in fact was/is distributors of the above mentioned goods for the State of Andhra
Pradesh. Apart from this, when the respondent No. 1 made application for registration of the impugned mark in relation to the impugned goods, it did
not have any user at all to get its impugned mark registered. This material misrepresentation as manufacturer and misstatement of user has been made
in order to give wrong impression before the Registrar about its goodwill, reputation and vastness of the alleged business. The respondent No. 1 is
guilty of fraud, the present application may be allowed on this ground alone.
Learned Counsel contended that the respondent No. 1 is not the proprietor of the trade GANGA in relation to domestic utensils and containers
(including pressure cookers), manually operated apparatus for grinding, mincing, etc. The documents on record show that respondent No. 1 was
distributor of these goods under the trade mark GANGA for the State of Andhra Pradesh till 6.9.1990 and thereafter abandoned the distributorship
and use of trade mark for the goods in class 21, therefore, respondent No. 1 cannot be the proprietor of trade mark GANGA which has not acquired
distinctive character in the trade and public alike. He contended also that the Registrar of Trade Marks while allowing advertisement of the application
for impugned registration of the respondent No. 1 in the Trade Marks Journal ought to have issued cross notice to the applicant herein under the
provisions of the Act, which he failed so to do.
Learned for the applicant contended that the entry of the impugned mark has been made without any sufficient cause and the same is wrongly
remaining on the register. He further contended that the registration of the impugned trade mark is contrary to the provisions of the Act. He urged that
this Appellate Board be pleased to pass order to remove/expunge the impugned trade mark from the register.
1 5 . Learned Counsel for the respondent No. 1 strongly refuting the preliminary objections raised about the appointment of Mr. Singhal as constituted
attorney submitted that the affidavit of two daughters clearly states that Mr. B. Murikrishna left behind him his wife and two daughters as legal heirs
and both the daughters relinquished their all their rights, interest, title in the assets, properties including intellectual property rights of their father, in
favour of their mother. The registered trade mark No. 934655 in class 21 which is valid up to 26.6.2010 is registered in the name of Battula Satyavati
trading as Vijaya Enterprises is evident, from the certificate issued by the Deputy Registrar of Trade Marks, Chennai for the purposes of using in legal
proceedings, that Mrs. Battula Satyavathi is the legal heir of late Mr. Murlikrishna. There is no ambiguity in the General Power of Attorney authorising
Mr. Singhal to sign and verify petitions and applications of all kinds and to appoint advocate to contest the same. Therefore, the preliminary objection is
frivolous and unsustainable in law.
Learned Counsel for the respondent No. 1 submitted that the bald contention of the applicant that the word or mark GANGA is commonly used in
relation to the impugned goods and business is denied in the absence of any evidence adduced in support of such a contention. The respondent No. 1
including its predecessor-in-business has been using the mark since 1984 openly, continuously and on a large scale and the mark has acquired
secondary significance and the goods bearing the trade mark GANGA are associated with the respondent No. 1 and no one else. By taking us through
to invoices, Newspaper articles and advertisements in the Newspapers, learned Counsel submitted that there is sufficient evidence placed on record to
prove the user and that the mark is well-known through out India and has acquired secondary significance. In order to prove this claim, learned
Counsel took us through an article in The Times of India, Hyderabad, 8th January 2003 which says that Vjaya Enterprises soon built up a reputation,
which was hard to beat. He further submitted that it is surprising and a best instance of falsehood and double standard that the applicant claims his
trade mark SHREE GANGA, which is an abrasion of GANGA, as distinctive while the trade mark of the respondent No. 1 as non-distinctive. The
meaning and idea conveyed by the mark of the applicant is same only. He also contended that the applicant except filing certain invoices from 1998 to
2006 has not produced any copies of alleged expenditure incurred towards publicity and sales turn over in lakhs of rupees to prove the accrued
goodwill and reputation to the trade mark SHREE GANGA.
Learned Counsel submitted that the respondent No. 1 including its predecessor was and is carrying on the trade in manufacturing, trading and
marketing in various goods, under the trade mark GANGA, as specified in the counter-statement. When application for registration was made for
registration of trade mark GANGA, the predecessor of respondent No. 1 was using the mark on or upon the goods for which registration was sought
and after the demise of the predecessor the successor is using the mark till present, therefore, no question no user of the mark arises. He took us to an
article published on 23.7.1997 in 'VAARTHA', Hyderabad and submitted that the article clearly states that the predecessor-in-business of respondent
No. 1 (Late Mr. B. Murlikrishna) has been 'manufacturing and selling Ganga Water Filters by himself and named his company as Vijaya Enterprises
and he is very successful in his business'. The respondent No. 1 has committed no fraud as has been baselessly alleged by the applicant.
Learned Counsel submitted that the respondent No. 1 claims his right in the trade mark GANGA by virtue of his adoption thereof prior in point of
time as well as prior use of it since the year 1984 in relation to the goods as specified in the counter-statement. The allegation that the respondent No.
1 has since September 1990 abandoned the use of the mark is misconceived and baseless as the respondent No. 1 has led substantial evidence to
prove his right in the said trade mark. To fortify his submission, learned Counsel placed reliance in the case of Consolidated Foods Corporation v.
Brandon and Co. Private Ltd. MANU/MH/0092/1965. He further submitted that on the contrary, it is the applicant who is illegally poaching the rights
of respondent No. 1 in the trade mark. He submitted that the applicant being in the same trade as the respondent No. 1, knew about the existence of
respondent No. 1 and the use of mark GANGA by him has deliberately with mala fide intention to cash upon the hard earned reputation and goodwill
of the respondent No. 1. The applicant has slavishly copied the GANGA written in an artistic and stylized manner with the addition of very small
Shree in Hindi.
Shri Sharma strongly denied that entry relating to the mark of respondent No. 1 is made without any sufficient cause and is wrongly remaining on
the register. The registration of the trade mark is proof of its validity and the entry relating thereto has been made validly and consistent with the law
and lawfully remains for sufficient cause. The contention of applicant that the cross notice ought to be issued before allowing the application of
respondent No. 1 for advertisement is misconceived. The very purpose of advertising the application is giving notice to the public to file notice of
opposition against the registration if any person feels that the proposed registration will abridge his rights. He further submitted that the applicant has
not come to this Appellate Board with clean hands as mark adopted by it is a slavish copy of well reputed or well-known mark of the respondent No.
1 and such adoption is undoubtedly mala fide and dishonest on the part of applicant.
We have heard learned Counsel for both the parties. First of all we will consider whether the applicant is the person aggrieved to institute the
present proceedings. Any person may file an opposition to registration but only the person aggrieved may file application for removal of trade mark
from the register or rectification of the register. The expression person aggrieved has liberally construed by the courts. The test to determine person
aggrieved is the one propounded in Powell's Trade Mark 1894 (11) RPC 4. A person aggrieved includes the rivals in the same trade who are
aggrieved by the entry of the rival's mark in the register or person whose legal rights would or might be limited if the mark remains on the register, he
could not lawfully do that which, but for the existence of the mark on the register he could lawfully do. The applicant in the present case is in the
business as manufacturer and merchant of containers, utensils, nonstick utensils and pressure cookers (non-electric) and pressure pans like the
respondent No. 1. The registration of trade mark obtained by the respondent No. 1 is in restraint to the legal rights of the applicant and is causing
threat to the stockiest and dealers of the applicant. Applying the above referred propounded test, the applicant is prima facie the person aggrieved.
The preliminary objection that no competent authority or court has declared Mrs. Satyavathi as legal heir of Late Mr. Murlikrishna as such the
constituted attorney appointed by her is not competent to file the counter-statement and also the power of attorney in favour of the constituted
attorney does not authorise him to contest the present proceedings is not sustainable for the reason that as per the certificate issued by the Deputy
Registrar of Trade Marks, Chennai for the purpose of use in legal proceedings, the trade mark GANGA under No. 934655 stands registered in the
name of Mrs. Satyavathi, trading as Vijaya Enterprises which implies that the competent authority for the purpose of registration of trade mark has
after satisfying itself has issued the registration certificate of trade mark which was originally applied by late Mr. B. Murlikrishna. Further, the GPA
authorised the constituted attorney to sign, verify petition, documents, applications in the matters relating to Intellectual Property Rights of M/s. Vijaya
Enterprises and to represent in the said courts on its behalf; and to appoint or remove any advocate or any legal practitioner; and as such we do not
see any deficiency in the authority given to the constituted attorney. The preliminary objections raised by the applicant are rejected as not sustainable.
The applicant's contention that the impugned mark was not distinctive at the time of registration or it fails to distinguish the goods of respondent
No. 1 from the other traders and the mark is commonly used for the impugned goods and business are bald contentions and no evidence or details
have been furnished to substantiate the same. Even it is not the case of the applicant that no evidence of user was adduced before the Registrar by
the respondent No. 1. It is the settled law that the onus to prove that the impugned mark is devoid of any distinctiveness or incapable of distinguishing
the goods of the respondent No. 1 from the goods of other trader is on the applicant. In the case of National Bell Co. and Anr. v. Metal Goods Mfg.
Co. (P) Ltd. and Anr. PTC (Suppl) (1) 586 (SC) t,he Hon'ble Supreme Court has held that a person can apply for cancellation on the ground that the
trade mark in question was not at the date of commencement of the proceedings distinctive in the sense of Section 9(3) of the Trade and Merchandise
Marks Act, 1958 and the burden of proof, however, in such a case is on the applicant applying under Section 56 of that Act. The applicant has also
given no details/particulars on the basis of which it could be determined that the word/mark GANGA is commonly used for the impugned goods and
the business. On the other hand the respondent No. 1 has claimed that the impugned mark has acquired distinctiveness, reputation and association with
respondent No. 1 due to prior, long, continuous and extensive use since 1984. The respondent made application for registration of the impugned mark
after using the same for one decade by which time it had acquired distinctiveness and reputation. The respondent No. 1 has placed on record certain
copies of invoices from 20.8.1984 to 6.9.1990, statement of annual sales turn over and advertisement expenditure (certified by the Chartered
Accountant) from the years 190-91 to 2005-06, certain copies of advertisements and articles published in Newspapers. The claim of respondent No. 1
that the impugned mark has acquired secondary significance has not been negated cogently by the applicant. The applicant has miserably failed to
discharge the onus on him to prove that the impugned mark was/is devoid of any distinctive character and that it is not registrable as being common to
trade.
Now we would consider whether respondent has made a committed the offence of fraud by claiming manufacturer of the impugned goods
misstatement in the application for registration. It is undisputed by the applicant that the respondent No. 1, including the predecessor, has been using
the mark since 1984 even as distributor of ""GANGA"" Water Filters for Andhra. According to an article published on 23.7.1997 in 'VAARTHA',
Hyderabad Mr. B. Murlikrishna (the predecessor-in-business of respondent No. 1) has been 'manufacturing and selling Ganga Water Filters by
himself and named his company as Vijaya Enterprises and he is very successful in his business'. In the next paragraph of the same article it says that
initially Mr. Murlikrishna was distributor for Andhra Pradesh only but now he is all India distributor and also manufacturing the same. In view of the
foregoing, the allegation that the respondent No. 1 by claiming to be the manufacturer has committed fraud is unsustainable. To determine fraud the
particulars thereof is required to be given, a mere allegation is not sufficient.
Now we would take up the contention of the applicant that the respondent is not the proprietor of the trade mark GANGA in relation to the
domestic utensils and containers (including pressure cookers), etc. and the registered proprietor is wrongly claiming his rights in the impugned mark.
The settled principle is that priority in adoption and use of a mark is superior to priority in registration. In the case of Consolidated Foods Corporation
(supra), the High Court of Bombay held as under:
A trader acquires a right of property in a distinctive mark merely by using it upon or in connection with his goods irrespective of the length of such
user and the extent of his trade. The trader who adopts such a mark is entitled to protection directly the article having assumed a vendible character is
launched upon the market. As between two competitors who are each desirous of adopting such a mark, it is, to use familiar language, entirely a
question of who gets there first. Registration under the stature does not confer any new right to the mark claimed or any greater right than what
already existed at common law and at equity without registration. It does however, facilitate a remedy which may be enforced and obtained
throughout the State and it established the record of facts affecting the right to the mark. Registration itself does not create a trade mark. The trade
mark exists independently of the registration which merely affords further protection under the statute. Common law rights are left wholly unaffected.
Priority in adoption and use of a trade mark is superior to priority in registration. For the purpose of claiming proprietorship, it is necessary, as already
stated that the mark should have been used for considerable any length of time. As a matter of fact, a single actual use with intent to continue such
use Enquiry Officer instanti confers a right to such mark as a trade mark. It is sufficient if the article with the mark upon it has actually become a
vendible article in the market with intent on the part of the proprietor to continue its production and sales. It is not necessary that the goods should
have acquired a reputation for quality under that mark. Actual use of the mark under such circumstances as showing an intention to adopt and use it
as a trade mark is the test rather than the extent or duration of the use. A mere casual intermittent or experimental use may be insufficient to show an
intention to adopt the mark as a trade mark for specific article or goods.
In the present case, the respondent No. 1 has adopted the trade mark GANGA in the year 1984 in respect of domestic utensils and containers
(including pressure cookers), manually operated apparatus for grinding, mincing, grating, shredding and cutting parts of and fittings included in class 21;
the adoption was after conducting search to ascertain the use or existence of any conflicting mark and he was first in adoption and in the market. The
respondent No. 1 has furnished copies of invoices from the years 1984 to 1990. The respondent No. 1 has also furnished certificate of sales turn over
and advertisement expenditure from the years 1990-91 to 2005-06 from the audited financial statements of respondent No. 1 which has not been
controverted by the applicant during the course of hearing. There are copies of advertisements on record from the years 1993 to 2003. From all these
documents it is evident that the respondent No. 1 has been using the mark continuously in respect of the above mentioned goods. Though the
respondent No. 1 has not furnished copies of invoices from the year 1991 onwards, the certificate of chartered accountant based on the audited
financial statements of respondent No. 1 and copies advertisements are sufficient indicators that the mark has been in use and has not been
abandoned. As the applicant has not disputed the veracity of certificate of chartered accountant there is no reason as to why the said certificate
should not be relied as an evidence of use of the impugned mark. Besides this, the article in VAARTHA (referred to above) contains a paragraph
which says that for his (Mr. V. Murlikrishna) business, publicity is an important factor and he himself meets advertisers and allots some time in a day
for this purpose; Mr. Murlikrishna told that his concern's budget for commercial advertisement is about Rs. 40 lakhs per annum and Vijaya Enterprises
ads appear more in T.V than in newspaper. Regarding reputation, an article in The Times of India, Hyderabad Edition, 8th January 2003, says that
Vjaya Enterprises soon built up a reputation, which was hard to beat.
In relation to the contention of the applicants that the Registrar of Trade Marks ought to have issued cause notice to the applicant at the time of
allowing the application for advertisement in the Trade Marks Journal, we are in agreement with the submission of the respondent No. 1 that the very
purpose of publication of application in the Trade Mark Journal is to give notice to the public in case any person may like to oppose the registration
sought for through the application so advertised. We are also of the opinion that in view of the averment made by the applicant that 'he is likely to
become the registered proprietor of the trade mark SHRI GANGA in respect of the aforementioned goods on account of honest concurrent user', the
applicant has no locus to seek cancellation of the trade mark of respondent No. 1 who is prior adopter and prior user of the mark GANGA. The
applicant has also failed to show that the impugned entry was made without any sufficient cause and the same wrongly remains on the register.
The result is that the applicant has miserably failed to substantiate the grounds on which the applicant has sought the removal of trade mark of the
respondent No. 1 from the register of trade marks. Accordingly, we dismiss the application as devoid of any merits. There is no order as to costs.