Bansi Dhar Bajaj vs Bajaj Biscuit Products And Ors.

S. Jagadeesan, J

The appeal is directed against the order of the Deputy Registrar of Trade Marks dated 18.8.93 disallowing the opposition No. DEL 6570 of the

appellant and allowing the application No. 419408 of the respondent herein above for registration of their trade mark 'BAJAJ' in class 30. The first

respondent herein filed an application No. 419408 on 20.3.84 for registering the trade mark 'BAJAJ' (word per se) in class 30 in respect of biscuits

etc., which after examination the goods were amended to read as biscuits (not for animals) for sale in the States of Punjab, Himachal Pradesh, Jammu

& Kashmir, Uttar Pradesh, Rajasthan and Haryana. The respondent claimed use of the mark since 30.5.1981. The mark was advertised in the trade

mark journal No. 971 dated 16.11.89 at page 1055. The appellants herein filed their opposition stating that their products bearing the same trade mark

'BAJAJ' in respect of biscuits and confectionary goods, have a great deal of valuable goodwill and has built up a reputation in the market. The

applicant's mark is similar to that of the appellants and as the rival goods are of the same description, it will cause deception and confusion in the

market. The appellant have also filed an application No. 456961 dated 16.7.86 in Class 30 in respect of biscuits and confectionary good and the same

is pending. The registration of the impugned trade mark is, therefore, contrary to the provisions of sections 9, 11(a), 11(e) and 18(1) of the Trade and

Merchandise Marks Act.

The respondent on 19.10.90 lodged a counter statement denying the averments made by the appellant in the opposition and further stated that the

respondent have honestly and bonafidely conceived and adopted the trade mark 'BAJAJ' in the year 1981, knowing fully well that there is no such

mark in use or in existence in respect of the same goods and that the word 'Bajaj' is actually a surname of all the partners and hence it was adopted

honestly. It was further stated that as the respondents having honestly adopted and used the mark applied for and so the registration cannot be

prevented and they are entitled for the same under sections 12(3) and 33 of the said Act.

The appellants filed their evidence on 20.4.92 by way of affidavit in the name of one Mr. Bansilal, proprietor of the appellant firm along with 7

photostat copies of the bills from 1.12.84 to 21.3.86. The respondents filed evidence on 14.12.92 by way of an affidavit in the name of one Mr. Ravi

Bajaj, partner of the respondent firm along with few copies of the bills, advertisement cuttings and other documents. After the completion of the

evidence, the Deputy Registrar of Trade Mark heard the Counsels on either side and finally passed the impugned order dated 18.8.93 disallowing the

opposition of the appellant and directing the registration of the trade mark of the respondent. Aggrieved by the same, the appellant filed the present

appeal on the file of the Hon'ble High Court of Delhi. In view of section 100 of the Trade and Merchandise Act, 1999 the appeal stands transferred

before this Board. We heard both the Counsels having our sitting at Delhi on 20th January 2004. The learned counsel for the appellant Shri V.P.

Giraiya, contended that as the appellant has been using the trade mark 'Bajaj' since 1983 in respect of biscuits and confectionary it had attained unique

goodwill and reputation in the market in respect of the quality of the goods. The mark applied for by the respondent is deceptively similar and,

therefore, the same ought not have been permitted to be registered. It is his further contention that the documents of evidence produced by the

respondents are only Photostat copies and hence the same ought not to have been relied upon in the absence of any original documents. The

appellants being the earlier user, the appellants are entitled for the registration of the mark as the application filed by them for registration is pending.

They submitted that the Deputy Registrar had relied upon the Photostat copies produced by the respondents regarding the use of the trade mark by

them which is not sustainable. Consequently the impugned order is liable to be set aside.

The learned counsel for the respondent Mr. Bhalerao, on the contrary contended that the documents produced by the respondents have been

accepted by the Deputy Registrar, Trade Marks, especially in view of the admissions made by the respondents. Further, the appellant have used the

letter 'R' with their mark as if their trade mark is a registered one when factually it is not so. Since the appellant had made a wrongful claim, his

opposition is liable to be rejected. In fact, the Deputy Registrar has taken into consideration all these aspects and disallowed the opposition filed by the

appellant and as such no interference is called for regarding the impugned order under appeal. Both the parties made a claim for the registration of the

trade mark 'BAJAJ' in respect of confectionary goods. Undoubtedly the rival trade marks are identical and the goods are also of the same description.

Hence, it is for us to consider as to who is entitled to the registration. In this case, the respondents application for registration is taken up for

consideration alongwith the opposition filed by the appellant. Hence, the Deputy Registrar has considered as to who is the earlier user of the said trade

mark, which alone, is a relevant factor to confer the right on the party. The respondents had produced the bills for the years 1981, 1982, 1986 and

1987. The learned counsel for the appellant contended that the same are stray bills, single bills for each year and so they cannot be taken for

consideration as an evidence for regular use. The appellant produced their bills only from the year 1983-84 and they have also filed one or two bills.

Both of them have filed only a few bills in support of their use, and so, we are of the view that even one bill is sufficient to establish the use of the

trade mark by the appellant and respondent. Hence, the bill for the year 1981 filed by the respondent can also be accepted. The respondent had also

filed other documents. The appellant had stated that they have used the trade mark 'BAJAJ' only in the year 1983, which is two years subsequent to

that of the use by the respondent. The respondent have stated that though error they had used the letter R with the trade mark. After that they have

now stopped using it. Even if the respondent has sold the goods in Amritsar they are entitled to registration as they are the prior adopter and user of

the mark 'Bajaj'. The Deputy Registrar has virtually taken into consideration these aspects and decided that the respondents have used the trade mark

'BAJAJ' earlier than the appellants and consequently held that they are entitled for the registration. He also held that the opposition of the appellant is

liable to be rejected. We do not find any reason to differ from the view taken by the Deputy Registrar of Trade Marks. Consequently, we affirm the

order of the Deputy Registrar and dismiss the appeal. Further, there is no order as to costs.