M/s. Dirk India Private Limited Plot No. 10, Chinmaya Bunglow Gitanjaly Colony, Indira Nagar Mumbai-Agra Road Nashik – 422009 vs M/s. Jogani Mahesh Babubhai 69, Harikunj Society Chikuwadi (Opp) Water Tank, Varachha Road Surat

S. Usha, J

The above Original Rectification Application is filed for removal of the trade mark POZZOMAX registered under No. 1122533 in class 19 under

the provisions of the Trade Marks Act, 1999. The applicants and their predecessors are engaged in the business of manufacturing and marketing of

Building material and Coal Ash for construction concrete, plastering and other construction purposes under the trade marks POZZO, POZZOCRETE

and POZZOPLAST. The applicant's predecessors are th registered proprietors of the trade mark POZZOCRETE under No. 927955 as of 29-05-

2000 in class 19 in respect of Building material and road making materials. The said trade mark has been assigned to the applicant by a deed of

assignment dated 21-02-2001.

2 . The applicants are the registered proprietors of the trade marks POZZOPLAST under No. 13449963 as of 11-04-2005 in class 19 and POZZO

under No. 1375136 as of 30-08-2005 in class 19. The three trade marks are closely associated with the applicants by nature of extensive and

voluminous use.

The use of the impugned trade mark POZZOMAX registered under No. 1122533 in class 19 is likely to cause confusion and deception among the

public. The applicant is a person aggrieved as they are the prior adopters, user and registered proprietor of the trade marks POZZOCRETE, POZZO

and POZZOPLAST, which is similar to th impugned trade mark. The impugned trade mark was not inherently adopted to distinguish and was

incapable of being distinguished. The impugned registration is contrary to the provisions of Section 9 of the Act. The impugned trade mark was not

used right from the date of registration. The respondent have adopted a similar trade mark with ulterior motive to take advantage of the reputation and

goodwill of the trade mark POZZO, POZZOCRETE and POZZOPLAST. The trade mark would be dis entitled to protection in a court of law. The

registration was made without sufficient cause and is wrongly remaining on the register. The registered trade mark is liable to be cancelled as the

registration is in contravention of the provisions of Section 9, 11, 18, 47 and 57 of the Act.

The respondents could not be served as the notice sent were returned unserved for want of correct address. Therefore, the applicants had filed a

Miscellaneous Petition for substituted service and the same was allowed. The respondents were served by way of publication. The respondents were

not represented and the matter were therefore set ex parte.

5 . We heard Shri Nakul Sharedalal, learned counsel for the applicants. The learned counsel for the applicant submitted that on the date of the

application in 2002, the mark was proposed to be used. The respondents are not the proprietors of the trade mark and the registration is in

contravention of the provisions of the Act. The applicants are the proprietors of the trade mark POZZOCRETE, POZZOPLAST an POZZO. The

impugned registered trade mark is deceptively similar to the applicants trade mark and therefore the registration is in contravention to section 11 of the

Act.

The respondents have not used the trade mark from the date of registration. The mark is liable to be rectified under section 47 of the Act. The

applicant placed the copy of the examination report along with the search report where it was mentioned that a deceptively similar mark was already

on the register.

7 . The Learned Counsel relied on the judgment reported in AIR 2003 SC 3377 - in regard to the issue of aggrieved person and also the Powells Trade

Mark Case 1894 RPC was relied on.

We have heard and considered the arguments of the applicants counsel and have gone through the pleadings and documents.

9 . The applicants are aggrieved by the presence of the mark on the register as the applicants are prior adopters and users of a deceptively similar

trade mark. We are to accept the applicants averment that they are the prior adopters for the reason that they have applied for registration of a similar

trade mark as early as 2000 whereas the respondents have filed their application for registration of the impugned trade mark in the year 2002 as

proposed to be used mark. The respondents have not appeared before us to deny the applicants use or adoption. The application is therefore

maintainable.

The other ground for rectification is that the respondents have not used the trade mark since the date of registration and the impugned trade mark

is therefore liable to be removed from the register. The respondents though have not appeared and disputed the allegation of non-user yet we are

unable to accept the ground. the reason being that the mark has been entered in the Register, only after the Trade Mark Journal advertisement in the

year 2004. As per the provisions of section 47 of the Act, the mark is liable to be removed only after five years from the date of registration. The

period has not lapsed and therefore this ground is rejected.

1 1 . The rival trade marks namely POZZO, POZZOCRETE, POZZOPLAST of th applicants and the respondent's POZZOMAX are deceptively

similar. While deciding the issue of deceptive similarity, the class of customers are to be considered. The goods are building materials, road making

materials etc. the class of customers could be both literate and illiterate. The possibility of confusion therefore is likely. The examination report and the

search report reveals that the applicants mark was already on the Register. The registration, therefore, ought not to have been granted. The impugned

trade mark registered under No. 1122533 in class 19 is therefore directed to be removed. The Original Rectification Application No.

ORA/135/2006/TM/ADM is accordingly allowed.