AI Structured Summary
Not yet generated for this judgment
Judgment
S. Usha, J
Application for removal of the trade mark ""crystal"" registered under No. 1213531 in Class 23 under the provisions of the Trade Marks Act, 1999
('Act' in short). The applicants herein are engaged in the business of manufacture and sale of variety of textile articles including ready made garments,
hosiery, knitted under wears, knitted garments, sports wear, swimming wear, athletic wear etc. The applicant's predecessor adopted the trade mark
CRYSTAL"" in the year 1971 in respect of the above mentioned goods. They have been using the same continuously and extensively since then. The
public and the trade identify the goods bearing the trade mark ""CRYSTAL"" as that of the applicant. The applicants have spent huge amount towards
promotional expenses of their trade mark. The expenditure runs to several lakhs of rupees. The applicants are prior in adoption and by such long,
continuous and extensive use their trade mark has acquired tremendous enviable and an unimpeachable reputation and goodwill amongst the public
and trade.
2 . The applicants trade mark being highly publicized has acquired a well known reputation in the minds of the public. The trade mark itself has
become well known and as such the reputation accrued to the said trade mark is not only confined to the goods for which the applicant have made use
of the said trade mark but also extends and spills over to all other goods including those that are cognate or allied in nature. The applicant's trade mark
has thus become highly distinctive of their goods.
3 The applicants have acquired statutory rights to the exclusive use by virtue of registrations granted under the provisions of the Trade Marks Act,
1999 ('Act' in short). The applicants have registered the trade mark ""CRYSTAL"" in various classes. As such they have registered the trade mark
CRYSTAL"" along with the logo and device. The said registrations have been renewed and are subsisting as on date. The applicants have not only
obtained trade mark registrations but have also obtained registrations of the artistic work under the Copyrights Act.
4 . The applicants trade mark is a well known trade mark and the use by the respondent would amount to taking unfair advantage of or detrimental to
the distinctive character of the applicant's trade mark. Any purchaser is likely to wonder as if threads and yarns bearing the trade mark ""CRYSTAL
have originated from the applicant's source of manufacture. The goods in which the applicant deals cannot be manufactured without yarns and
threads. The impugned registration under No. 1213531 in Class 23 has been obtained dishonestly, malafidely and in bad faith. The impugned
registration is likely to cause confusion and deception. The impugned registration has been wrongly obtained and is wrongly remaining in the register
without sufficient cause. The registration is in violation of the principles of law, equity and good conscience. The impugned registration is in
contravention of the provisions of Section 9,11 and 18 of the Act. The respondents have never used the trade mark and as such the registration has
been wrongly obtained and wrongly remaining on the register. The trade mark has not been used up to the date of three months prior to the date of the
institution of the present proceedings. The registration has been obtained by playing fraud. The registration has been obtained by concealing the
material facts and by making misrepresentation before the Registrar.
5 . We have heard the learned Counsel for the applicant. In spite of service of the notice, the respondent was not present in the earlier occasion and
for today's hearing. The respondent was therefore set ex parte and we heard the applicant.
6 . The learned Counsel for the applicant submitted that the applicant adopted and used the trade mark ""CRYSTAL"" since the year 1971. The
applicants are the registered proprietors of the trade mark both word mark and device mark. They are the proprietors of the artistic work. The
applicants are engaged in the business of manufacturing and selling various textile articles. The applicants have given their sales figures which runs to
several lakhs of rupees.
7 . The Counsel further submitted that the impugned application has been filed on 11.07.2003 claiming user since 16.03.1998. The respondents have
not filed their counter statement denying the applicants use nor have they filed any evidence of their user at least since 1998. The respondent's trade
mark is neither distinctive nor capable of being distinguished and therefore is in contravention of the provisions of Section 9 of the Act. The respondent
has obtained registration in bad faith. The respondent has not used the trade mark and the mark therefore deserves to be removed for non-use.
8 . The applicants being the prior user of the trade mark is aggrieved by the registration of an identical trade mark for identical goods.
9 . We have considered the arguments and gone through the pleadings and documents carefully.
The Counsel relied on several judgments which we are not going into as we shall deal with the matter on the facts of the case.
The application for registration of the impugned trade mark has been filed on 11.07.2003 claiming user since 16.03.1998. The respondent though is
aware of this proceedings has not filed any counter statement nor has appeared before this Board to prove their case. The respondents have not
produced any evidence in proof of their use since 1998 as claimed in their application for registration.
The main ground of the rectification petition is that the respondents have not used the trade mark after registration. The respondents are aware of
the proceedings and had in fact filed their reply to the Miscellaneous Petition No. 61 of 2010 for substituted service. The respondents probably are not
using the trade mark and that could be the reason for them not filing their counter statement as well for their non appearance.
The applicant's trade mark ""CRYSTAL"" has been on the register since 1991 for identical goods even before the respondent adopted and used the
trade mark. We therefore think that the impugned trade mark is wrongly remaining on the register. Accordingly, ORA/204/2007/TM/AMD is allowed
with a direction to the Registrar of Trade Marks to remove the trade mark ""CRYSTAL"" registered under No. 1213531 in Class 23 from the register
of Trade Marks. There shall be no order as to costs.