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Judgment
S. Usha, J
1 . The above rectification application has been filed for removal of the trade mark Kalpaka (Label Mark) under No. 1374072 in class 37 under the
provisions of the Trade Marks Act, 1999 (hereinafter referred to as the Act). The rectification application was filed on the grounds that the
registration is in contravention of the provisions of the Act. The respondent herein, the registered proprietor submitted that the trade mark was
rightfully registered and the mark ought to continue on the register.
On completion of the pleadings the matter was posted for hearing. The counsel for the applicant pointed out that the impugned trade mark was
advertised in the Trade Mark Journal as a word mark whereas the registration has been granted for a label mark. The trade mark is therefore wrongly
remaining on the register and ought to be removed.
The learned counsel for the respondent submitted that the trade mark shall not be removed as the wrong advertisement was not the parties mistake
but is that of the Trade Mark Registry. On seeing the Trade Marks Journal advertisement, the respondents have intimated the Registrar about the
discrepancy which has not been considered by the Trade Marks Registry. If the registration is recalled and the mark is re-advertised they would be
put to loss and hardship not only in these proceedings but also in other proceedings. The counsel relied on a Judgment reported in 1948 RPC (65) 193
and submitted that mark can be held to be wrongly remaining on the register only if it offends against the provision of the Act and not otherwise.
4 . We have heard and considered the arguments of both the counsel. We have perused both the Trade Mark Journal advertisement as well as the
Registration certificate and also the trade mark application. As per the provisions of the Act and Rules the trade mark is advertised either before
acceptance or after acceptance but before registration. The very purpose of the advertisement is to provide a complete information to the public at
large, so that they may receive a clear information in respect of the advertised trade mark. If the advertised trade mark does not give the full
particulars of the trade mark or gives incorrect information, the public as deprived of the opportunity of getting the full information as well are deprived
of the opportunity of filing an effective opposition. An incorrect or wrong advertisement is therefore required to be cancelled. If that is so then the
granted registration also stands removed. In the instant case, the mark applied for is a label mark but the publication is a word mark. The respondent
contention in this regard is that both are the words 'KALPAKA' and therefore there is no difference between the two. We cannot accept this. The
label mark contains the word Kalpaka along with the letter K written in a stylized manner whereas in the word mark it is only the word Kalpaka.
There may be oppositions for the stylish letter 'K' which we are not aware.
5 . The case on hand is one where the advertisement is made before acceptance, therefore the application should be put at the stage of Rule 38(4) of
the Rules 2002, the stage before acceptance. We therefore remand the matter to the Trade Mark Registry for considering the application from the
stage before acceptance and to deal with the same in accordance with law. The original rectification is therefore allowed with the above direction.
The trade mark registered under No. 1374072 in Class 37 stands cancelled. There shall be no order as to costs.