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Judgment
S. Usha, J
The original rectification application has been filed for removal of the trade mark ""HAPPYDAY"" registered under No. 1187474 in class 32 under
the provisions of the Trade Marks Act, 1999 (in short the Act). The applicant is a reputed multinational company established in the year 1919, since
then engaged in the business of manufacturing, distributing and marketing of goods: preserved, dried and cooked fruits; jellies, jams, fruit sauces; milk
products; edible oils in class 29; coffee, tea, cocoa; vinegar, sauces in class 30; mineral and aerated waters, and other non-alcoholic drinks; fruit drinks
and fruit juices; syrups and other preparations for making beverages in class 32. They have honestly adopted and used the trade mark ""HAPPYDAY
in the year 1979. They used the same in India in the year 2000. The applicants are the registered proprietors of the trade mark in various countries like
Austria, Bahrain, Bangladesh, China, Netherlands, Antilles, Denmark, Djibouti, Finland, Greece, Great Britain, Iraq, Iran, Ireland, Israel, Yemen,
Jordan, Kuwait, Lebanon, Malaysia, Maldives, Malta, Mexico, Nigeria, Norway, Philippines, Poland, Qatar, Saudi Arabia, Sweden, Spain, South
Africa, South Korea, Russian Federation, Syria, Taiwan, Thailand, Tunisia, Turkey, United Arab Emirates, Cyprus, Egypt, Albania, Armenia,
Azerbaijan, Australia, Nenelux, Bosnia and Herzegovina, Bulgaria, Denmark, Germany, Estonia, France, Georgia, Iceland, Italy, Serbia, Kazakhstan,
Kyrgyzstan, Croatia, Latvia, Liechtenstein, Lithuania, Morocco, Republic of Macedonia, Republic of Moldova, Monaco, Montenegro, Norway,
Portugal, Romania, San Marino, Switzerland, Singapore, Slovakia, Slovenia, Sudan, Spain, Tajikistan, Czech Republic, Turkey, Turkmenistan, Ukraine,
Hungary, Uzbekistan and Belarus. The applicants have applied for registration of their trade mark HAPPYDAY in India under No. 1609572 in
classes 5, 29, 30 & 32 and the same is pending. The applicant's trade mark by global presence and extensive use in a number of countries has
acquired the status of a well known mark.
2 . The expression ""HAPPYDAY"" commands high level of distinctiveness and always forms the most distinguishing feature of the applicants trading
style. They have advertised their trade mark ""HAPPYDAY"" through different modes of advertising, through website www.rauch.cc.
The applicants carried out a search and found that the trade mark HAPPYDAY has never been used by the respondents though registered under
No. 1187474 in class 32. The applicants have filed this application for rectification on this ground under section 47(1) (a) & (b) of the Act.
Inspite of service of the notice on the respondent, they did not enter appearance therefore we heard the applicant setting the respondents ex parte.
The counsel for the applicant contended that they adopted the trade mark as early as 1979 outside India and had been using the same since 2000 in
India. They are the registered proprietors of the Trade Mark HAPPYDAY in various countries. As far as India is concerned, the trade mark
application is pending registration. The counsel then pointed out that their use in India was evidenced by the invoice dated 2005.
6 . The counsel further brought to our notice the investigation report dated 11.11.2009 and submitted that the trade mark though registered was never
used by the respondent as it was not available in the market. The respondent was not available in the said address and is not traceable therefore they
cannot be said to be the proprietor of the trade mark as per Section 18 of the Act. The registered trade mark is not used and is therefore to be
cancelled as per Section 47 of the Act. The trade mark is wrongly remaining on the register as it is not used and therefore the trade mark deserves to
be removed under Section 57 of the Act.
7 . We have heard the counsel for the applicant and have carefully considered the pleadings.
8 . The main ground of this rectification application is non user. The applicant has placed his application based on the investigation report dated
11.11.2009. The impugned trade mark has been registered on 06.10.2005. Probably that is the reason the applicant has filed this rectification
application after two years of knowledge and could be that he had to ascertain his main ground of non user.
From the investigation report it is seen that the respondent is not available in the address given. The address given is Kylas Nagraj trading as Sree
Matha Beverages, Plot No. 186, A3, Bowenpally, Secunderabad. Even the postal authorities were not able to help the investigators. The notice issued
by this Board has also been returned as unserved. In such case, we do not think it just to allow the mark to continue on the register. We therefore
allow the rectification application with a direction to the registrar to cancel the trade mark wrongly remaining on the register.