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Judgment
Prabha Sridevan, J
1 . This appeal has been filed against the order passed by the Assistant Registrar in the matter of application no 432117 in class 19 in respect of the
trademark Chamak, and the opposition No AMD 53731, by which the opposition was dismissed and the mark was directed to proceed to registration.
2 . The appellant's case is that they are an established business dealing and manufacturing lime. They have been openly using the word Chamak and
have applied for registration on 16.4.93 and the application is pending. The mark applied for by the appellant and the impugned mark are identical. The
impugned mark is identical, it is neither adopted to distinguish nor is it capable of distinguishing the goods. Therefore they opposed the registration.
3 . The respondent's case is that they are doing business in lime for several years under the trademark Chamak. They are the first and original adopter
of the mark and have been using the same since 1981. The Hon'ble Gujarat High Court has held that Chamak is not descriptive. The mark deserves
registration.
4 . The appellants did not file any evidence under Rule 53. The respondents filed exhibits A to G. Though opportunity was given to the appellants to
appear before the Assistant Registrar they did not do so. Finally the Assistant Registrar heard the respondent and then passed ordeRs.
The learned counsel for the appellant submitted that the word Chamak was directly descriptive of the goods, and the respondent has not proved
user. The appellant relied on AIR 1953 SC 357 - National Sewing Thread Co. Ltd. Chidambaram Vs. James Chadwick and Bros. Ltd. ""The principles
of law applicable to such cases are well settled. The burden of proving that the trade mark which a person seeks to register is not likely to deceive or
to cause confusion is upon the applicant.
It is for him to satisfy the Registrar that his trade mark does not fall within the prohibition of Sec.8 and therefore it should be registered. Moreover in
deciding whether a particular trade mark is likely to deceive or cause confusion that duty is not discharged by arriving at the result by merely
comparing it with the trade mark which is already registered and whose discharged by arriving at the result by merely comparing it with the trade
mark which is already registered and whose proprietor is offering opposition to the registration of the mark. The real question to decide in such cases
is to see as to how a purchaser, who must be looked upon as an average man of ordinary intelligence, would react to a particular trade mark, what
association he would form by looking at the trade mark, and in what respect he would connect the trade mark with the goods which he would be
purchasing.
The learned counsel for the respondent relied on the judgment in MCA 3 of 1992 of the Hon'ble Gujarat High Court. This was an earlier round of
litigation of the same matter, where by order dated 18.2.1992 the registrar had refused to consider this mark for registration. The learned counsel also
submitted that the appellant had not produced any evidence and the registrar had passed a correct order.
In the order of Gujarat High Court - Misc. Civil Appln. No. 3 of 1992 - Dilipkumar R. Patil Vs. Assistant Registrar of Trade Marks, Ahmedabad
dated 17.1.1998, the learned Judge had held ""If the provisions of section 9(1)(d) of the said Act are considered then it would be quite clear that the
words/word which are/is to be used as a trade mark may not have two references to the quality or characteristic of the goods. In considering whether
a mark has reference to the characteristic or quality of the goods, the mark must be looked at not in its glittering significance but as it would be a
reflection to the public at larger. Such question is a practical question to be decided by the common understanding of the terms amongst those who use
it or have occasion to use it in the course of their daily life and not by the meaning to be found in the dictionaries. The petitioner is dealing in lime and
building materials and he is using the word 'Chamak' for his products. The Assistant Registrar has observed in his order that the word 'CHAMAK'
according to Hindi dictionary means, flash, glenm, splendour, light, bright, shine etc. It is very difficult to hold that the lime which is used as a building
material could fall in any of these description/definition of 'CHAMAK'. It is not at all possible to hold that by the word 'CHAMAK' any person dealing
with the material in question will understand that 'Chamak' means lime. Lime has neither brightness nor shaping nor flash nor splendor nor bright. I am
unable to hold that by the use of the said word 'CHAMAK' by the present appellant, the appellant will be encroaching on the rights of the other
persons dealing in similar material"". So this question is no longer open.
As regards user the Registrar was satisfied that the evidence showed user by the respondent. On the other hand the appellant had not filed any
evidence to show user that there was likelihood of confusion.
9 . The Respondent had filed Regular Civil Suit No. 2/93 in the Joint District Judge Ahmedabad (Rural) - Dilipkumar Patel and Vishal Limes Private
Limited Vs. Rajesh Lime Suppliers against the appellant for passing off. The appellant as defendant did not file any written statement. The plaintiff
witness had stated that since 1981 he was selling plaintiff's Chamak lime and bills were produced. The defendant had not produced any evidence to
show he had inherited the business from his father. The suit was dismissed on the ground that the plaintiff had not proved his case. One thing is clear
from this judgment and that is the appellant did not produce any evidence to prove user even before the civil court.
The Registrar had referred to the respondent's evidence to show user. We called for the records and perused the same. The Hon'ble Gujarat High
Court had held it is not descriptive. So none of the objections to the registration of the mark can be sustained.
In the absence of any evidence on the side of the appellant, we have no material to hold that the impugned order is erroneous. We therefore
dismiss the appeal.