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Judgment
S. Usha, J
1 . The original appeal is against the order of the Deputy Registrar of Trade Marks dated 17.10.2007 disallowing the opposition No. MAS -2659 &
allowing application No. 402886 in class 5 to proceed for registration under the provisions of the Trade Marks Act 1999. (hereafter referred to as the
Act).
The 1st respondent filed an application for registration of the trade mark ""Primax"" in class 5 on 17.03.1983 under No. 402886 as a proposed to be
used mark. The appellant herein filed their notice of opposition opposing the registration of the impugned trade mark ""Primax"" on the ground that they
had been using the trade mark 'Primox' since the year 1983 and the impugned registration would cause confusion and deception and was therefore
prohibited under Section 11 of the Act.
3 . The 1st respondent filed their counter statement denying the various allegations and averments made in the notice of opposition. After hearing both
the parties on completion of the pleadings the registrar passed the impugned order on the finding that the notice of opposition has been filed by a
partnership firm where no names of the partners are given and subsequently the affidavit of evidence under Rule 50 has been filed by a senior
executive of the limited company and where there is no proof or evidence as to the change in the constitution of the firm. On this ground, the Registrar
had refused to exercise his discretionary powers in favour of the appellants.
Aggrieved by the said order, the appellants are before us on appeal.
5 . We have heard Mr. Rajesh Ramanathan for the appellant and Ms Shobana Komal for the respondent.
6 . The learned counsel for the appellant submitted that they had adopted the trade mark Primox as early as 1983 and were using the same since then.
They had also applied for registration of the trade mark under No.452812. He further submitted that the impugned trade mark was applied for
registration on 17.03.1983 as proposed to be used and therefore, the 1st respondent was a subsequent user. The counsel also pointed out that in the
drug licence, the mark was written in hand subsequently and cannot be relied on for the purpose of this case.
7 . The learned counsel for the 1st respondent submitted that though the appellant claim user since 1983 and state that they had applied for
registration, the said application has been abandoned. She further submitted that they had been using the mark since 1983 extensively and continuously
without any interruption.
We have heard and considered the arguments of both the counsel and have gone through the records.
9 . The only issue for consideration is whether the evidence filed in support of opposition can be taken on record and considered for deciding the
opposition proceedings. The notice of opposition is filed by Sun Pharmaceuticals Industries, a partnership firm on the 24th of February, 1992.
Thereafter on 22nd July, 2004, the affidavit of evidence is filed by a senior executive Mr. Ravi Krishnamoorthy of Sun Pharmaceuticals Industries
Limited. On perusal of the records it is seen that the notice of opposition on Form TM 5 has not been verified by the opponent i.e. the appellant herein
and the address for service is the appellants address and not of the counsel. It is seen that the notice of opposition has been signed by a partner,
whereas the affidavit of evidence in support of the opposition has been sworn in and signed by one Mr. Ravi Krishnamoorthy as senior executive of
the Company. As observed by the Registrar there is no evidence or averment for the change in the constitution of the appellants nor has the appellants
filed any evidence to substantiate the claim of change.
While hearing the matter, we had put a question as to whether any application had been filed for bringing on record the change, the counsel
appearing for the appellant submitted that no such application was filed.
On the above ground, even without going with the merits of the case, we are of the opinion that the appeal deserves to be dismissed. Accordingly
the appeal is dismissed and the application No. 402886 shall be allowed for registration.