1. A trade mark consisting of an expression 'BACTOPRIM D.S.' was applied for registration by the above named applicants in respect of "Medicinal and Pharmaceutical preparations" in Class 5 under application No. 434938 dated 7.3.1985 claiming the user therein since 13.8.1984 under the provisions of Trade & Merchandise Marks Act, 1958 (herein after referred to as the Act). Eventually, the mark was advertised as accepted in Trade Mark Journal No. 1001 dated 16.2.1991 at page 1336.
2. The above named opponents notified their intention to oppose the registration of the impugned trade mark by filing notice of opposition dated 10.6.1991 alongwith a request on Form TM-44 for condoning the delay in filing the notice of opposition inter alia stating the grounds of opposition as follows :- (1) That the opponents carry on an old established and reputed business in manufacturing and selling a variety of medicinal and pharmaceutical preparations all over the world. (2) That the opponents are the proprietors of the mark 'BACTRIM' registered under No. 250035 as of 20.6.1968 in Class 5 advertised in Trade Mark Journal No. 497 dated 16.2.1970 at page 842 and they have been using the said trade mark in respect of their product continuously and extensively over past many years.
(3) That by virtue of extensive use of the said trade mark throughout the world for past many years, it exclusively come to associate with the opponents and their manufacture in the minds of the general public and attained so much goodwill and reputation during the course of trade.
(4) That the trade mark applied for registration under the impugned application consisting of word 'BACTROPRIM D.S.' which is deceptively similar to the opponents' said registered trade mark and the goods in respect of which the impugned trade mark is sought to be registered are the same as those covered under the registration of the opponents' said trade mark.
(5) That by reason of the use and reputation of the opponents' said registration, the use and registration of the impugned trade mark is likely to deceive or cause confusion among the pubic and trade and the mark is not registrable under Section 11(a) of the Act.
(6) That the use of the mark applied for would be an infringement of the opponents' said registered trade mark and would lead to pass off - the, applicants' goods as the goods of opponents. Therefore, it would be disentitled for protection in the court of law under Section 11(e) of the Act.
(7) That the impugned trade mark is not registrable. It is neither adopted to distinguish, nor capable of distinguishing the applicants' goods and thus it does not satisfy the requirements of Section 9 of the Act.
(8) That the applicants' are not the proprietors of the mark. They have no reason or justification in filing the application for registration of an identical or deceptively similar trade mark except with an ulterior motto of trading upon the benefits of reputation and goodwill acquired by the opponents' said trade mark.
Moreover, the user claimed in the application being false and untrue is denied. The mark is, therefore, contrary to Section 18(1) of the Act.
Finally, the opponents prayed this Tribunal to refuse registration of the impugned application with an order as to costs in their favour by exercising its discretion vested under Section 18(4) of the Act.
3. In their counter statement dated 2.12.1991, the applicants denied all the allegations contained in the notice of opposition beyond what was the matter of record and specifically admitted by them, stating that they were the true proprietors of the impugned trade mark as they adopted the mark honestly with a bona fide intention in the year 1984, since to the best of their knowledge, information and belief; there was none using the similar trade mark in respect of medicinal and pharmaceutical preparations. They contended that the trade mark 'BACTOPRIM' was coined and invented from the ingredients that go into the formulation. 'BACTOPRIM' was coined by taking 'BACTO' from the expression 'anti-bacterial' and 'PRIM' from the expression Trimethoprim'; and letters 'D.S.' were taken from the expression 'double strength'. The said trade mark 'BACTOPRIM D.S.' is being used by the applicants continuously and extensively over since 13.8.1984. By virtue of such extensive and bona fide use the said trade mark has become exclusively associated with the goods of the applicants' firm.
The applicants have strongly repudiated the allegations made in para 10 of the notice of opposition as baseless and ill founded. They empathetically denied the alleged use and reputation of the opponents' trade mark and contended that their trade mark was entirely different from the opponents' trade mark both visually and phonetically. They added that both the products i.e. 'BACTOPRIM D.S.' and 'BACTRIM' are scheduled drugs and can be sold only on written prescription of a registered medical practitioner. Therefore, there is no possibility of any confusion or conflict to the trade marks of the opponents and the applicants.
4. Having regard to the above facts, the applicants prayed this Tribunal to exercise its discretion vested upon Section 18(4) of the Act, adversely to the opponents by dismissing the opposition with an order of exemplary cost in their favour.
5. The opponents filed evidence in support of the notice of opposition under Rule 53 by way of an affidavit of Peter Ziegler, holder of the opponents company, namely F. Hoffmann-Fa Roche A.G., a joint stock company organized and existing under the laws of Switzerland alongwith Annexure 'A' to 'C. The applicants filed evidence in support of the application under Rule 54 by way of an affidavit of B. Rosaiah, the sole proprietor of the applicants firm alongwith two invoices bearing Nos. 266 and 267 both dated 13.8.1984 and a specimen of cartoon of 'BACTOPRIM D.S.' both marked as Ex. 'A' and 'B' respectively. The opponents filed reply evidence under Rule 55 by way of an another affidavit from the same deponent stating and affirming therein that copies of two invoices filed as evidence of use in support of the applicants' affidavit were not xerox copies of the original invoices, but they were embossed on some other different matters. Subsequently, the opponents filed an additional affidavit of Michel Emmenegger, authorised signatory of the opponent company, by fifing an interlocutory petition dated 26.7.1996. Pursuant to an ex-parte hearing held on 9th October, 2000 while none appeared on behalf of the applicants, the said interlocutory petition was allowed by the learned Deputy Registrar of Trade Marks vide his order dated 12.2.2001 and the said additional affidavit was taken on record as reply evidence directing therein the opponents to pay a sum of Rs. 2,200/-only for condoning the delay in filing the said additional evidence under Rule 6. Eventually, the matter was set down for final hearing on 21.6.2001, when Mr. A.V.S. Ramasarma, Advocate instructed by De Penning & De Penning appeared for the opponents and none appeared for the applicants. However, the applicants' attorney V. Balakrishnan had since withdrawn himself from the case vide his letter dated 27.5.2000.
Subsequently, when hearing notice was sent directly to the applicants vide this office letter dated 9.5.2001, the same was returned to this office undelivered with the remarks of postal authorities "Name different". Since the applicants had not been present in hearing, I put my best consideration to their case on the material available on record. After hearing the arguments advanced by Mr. A.V.S. Ramasarma, Advocate, the matter was concluded on the same day. I reserved my order and decision thereon.
7. The allegations made by the opponents in their notice of opposition come within the criteria of Sections 9, 11(a), 11(e), 12(1) and 18(1) of the Act. I will examine all the aforesaid objections one by one. But for the sake of convenience, I shall prefer to take up the opponents' objection raised under Section 12(1) for examination first.
8. Invoking Section 12(1), the opponents have relied upon their trade mark 'BACTRIM', which is duly registered in respect of an anti-infective preparation containing anti-bacterial substances including a sulfonamide under No. 250035 in class 5. The impugned trade mark is 'BACTOPRIM D.S.' which is sought to be registered in respect of "Medicinal and Pharmaceutical preparations". There is no doubt at all that goods in respect of which the impugned trade mark is sought to be registered are the same or of the same description as those for which the opponents' trade mark is duly registered and the parties here to have never disputed on the point. However, the question whether the applicants' mark 'BACTOPRIM D.S.' is deceptively similar to the opponents' said registered trade mark 'BACTRIM' is yet to be decided.
9. It has been repeatedly emphasized in various decisions that the question whether two marks are likely to give rise to confusion or not is a question of first impression. Aristoc (1943) 60 RFC 87 at 108; (1945) 62 RFC 65 (HL) at 72; Com Products v. Shangrila, AIR 1960 SC 142 at 147 : PTC (Suppl)(1) 13(SC). "Each case must be decided on it's own facts. Decided cases are, therefore, of little assistance in determining the question of deceptive similarity in a particular case.
They are useful only in so far as they lay down any general principles." 10. Amrithdhara Pharmacy v. Satya Deo, AIR 1963 SC 449 at 452 : PTC (Suppl)(2) 1(SC); Coca-Cola Co. v. Pepsi-Cola, (1942) 59 RPC 127 at 133. It is well settled that in deciding the question of similarity between two marks, the marks have to be considered as wholes when comparing two words, it is not right to take a part of the word and compare it with a part of the other word ; one word must be considered as a whole and compared with the other word as a whole. In William bailey (Birmigham) Ltd. 's Appln., (1935) RPC 136. Farwill Justice said "I do not think it is a right to take part of the word and compare it with a part of the other word, one word must be considered as a whole and compared with the other word as a whole. I think it is dangerous method to adopt to dilute the word up and seek to distinguish a portion of it from a portion of the other word." "The true test", as observed by Sargant, J. "is whether the totality of the proposed trade mark is such that it is likely to cause mis-lake or deception, or confusion, in the minds of persons accustomed to the existing trade mark." 11. The rule of comparison of the two word marks was formulated by Justice Parker in Pianotist case as follows :- "You must take the two words. You must judge of them, both by their look and by their sound. You must consider the goods to which they are to be applied. You must consider the nature and kind of customer who would be likely to buy those goods. In fact, you must consider all the surrounding circumstances ; and you must further consider what is likely to happen if each of those trade marks is used in a normal way as a trade mark for the goods of the respective owners of the marks. If, considering all those circumstances, you come to the conclusion that there will be confusion - that is to say, not necessarily that one man will be injured and the other will gain illicit benefit, but that there will be confusion in the mind of the public which will lead to confusion in the goods- then you may refuse the registration, or rather you must refuse the registration in that case." 12. In Aristoc case, Luxmore, L.J. observed : "The answer to the question whether the sound of one word resembles too nearly the sound of another so as to bring the former within the limits of Section 12 of the Trade Marks Act, 1938, must nearly always depend on first impression, for obviously a person who is familiar with both words will neither be deceived nor confused. It is the person who only knows the one word, and has perhaps an imperfect recollection of it, who is likely to be deceived or confused. Little assistance, therefore, is to be obtained from a meticulous comparison of the two words, letter by letter and syllable by syllable, pronounced with the clarity to be expected from a teacher of elocution. The court must be careful to make allowance for imperfect recollection and the effect of pronunciation and speech on the part not only of the person seeking to buy under the trade description, but also of the shop assistant ministering to that person's wants." 13. In the instant case, the opponents' trade mark is 'BACTRIM' and the applicants' mark consist of 'BACTOPRIM D.S.' in both the rival marks the prefix 'bact' and suffix 'rim' are the same and the marks as wholes in my view, closely resemble to each other notwithstanding a minor difference of two letters 'OP'. However, letter 'O' being vowel has least stress in distinguishing the impugned mark from the opponents' mark and letter 'P' is not so laudable while pronouncing the rival marks.
"Where the prefix as well as the suffix are similar, ordinarily the marks will be held similar1' (para 17.32 of P. Narayanan's Trade Marks & Passing off -4th Edition).
14. As regards to letters 'D.S.', the same stand for a descriptive term "Double Strength" and have least importance in comparing the mark specially in respect of medicinal products. However, the opponents have also been using their mark as 'BACTRIM', 'BACTRIM D.S.', 'BACTRIM A.D.' etc. as per evidence filed by them under Rule 53.
15. I do not agree with the applicants' contentions that the impugned trade mark is entirely different from the opponents' registered trade mark both visually and phonetically and moreover, both the products 'BACTOPRIM D.S.' and 'BACTRIM' are scheduled drugs can be sold only on the written prescription of a registered medical practitioner, therefore, there is absolutely no possibility of any confusion.Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd., though the Hon'ble Supreme Court did not interfere with the order appealed against for the reason that there might be possibility of evidence being requested on merit of the case, yet it gave direction to the lower Court Vadodara regarding expeditious disposal of the suit on the principles which were to be kept in mind while dealing with an action for infringement or passing off specially in the cases relating to the medical products. The appellant in this case filed a suit in the District Court at Vadodara seeking injunction against the respondent from using the trade mark 'FALCITAB' as it was claimed that the same would be passed off as appellant's drugs 'FALCIGO' for treatment of the same disease in view of confusing similarity and deception in the brands. It was the case of the respondents that admittedly the two products in question were schedule 'L' drugs which can be sold only to the Hospitals & Clinics with the result that there could not be even a remote chance of confusion and deception. It may be here noticed that schedule 'H' drugs and those, which can be sold by the chemist only on the prescription of the doctor, but schedule 'L' drugs are not sold across the country but are sold only to the hospitals and clinics. While directing the lower Court for expeditious disposal of the suit, the Hon'ble Supreme Court referred the English cases as guidelines specially in the matter pertaining to the medicinal products. A few of those are as follows :- 17. In American Cynamid Corp. v. Connaught Laboratories Inc., 231 USPQ 128 (2"d Cir. 1986) "Exacting judicial scrutiny is required if there is a possibility of confusion over marks on medical products because the potential harm may be far more dire than that in confusion over ordinary consumer products" "Physicians and pharmacists are knowledgeable in their fields does not mean they are equally knowledgeable to marks and immune from mistaking one 'mark from another" [Schering Corporation v. Aha Corporation, 207 USPQ 504 (TTAB 1980)] 18. In Blansett Pharmaceuticals Co. v. Carmick Laboratories Inc., 25 USPO 2"d, 1473 (TTAB 1993). Confusion and mistake, "is likely even for prescription drugs prescribed by doctors and dispensed by pharmacists, where these similar goods are marketed and marks which look alike and sound alike." 19. In Glenwood Laboratories Inc. v. American Home Products Corporation, 173 USPQ 19 (1972) 455 F. Reports 2d, 1364 (1972). It was held "the products of parties are medicinal and applicants product is contraindicated for the disease for which the opposer's product is indicated. It is apparent that confusion or mistake in tilling a prescription for either product could produce harmful effect. Under such circumstances, it is necessary for obvious reason to avoid confusion or mistake in the dispensing of the pharmaceuticals".
20. In Supra Case, it is held that "Physicians are not immune from confusion or mistake. Further more, it is common knowledge that many prescriptions are telephoned to the Pharmacist and others or handwritten and frequently handwriting is not unmistakably legible.
These facts enhance the chances of confusion or mistake by the pharmacist in filing the prescription if the marks appear too much alike when handwritten or sound too much alike when pronounced.
"It seems to us that where ethical goods are sold and careless use is dangerous, greater care should be taken in the use of registration of trade marks to assure that no harmful confusion results." Campbell Products, Inc. v. John Weyth & Bros. Inc, 143 F. 2d 977, 979, 31 CCPA 1217 (1944).
21. Public interest would support lesser degree of proof showing confusing similarity in the case of trade mark in respect of medicinal product as against other non-medicinal products. Drugs are poisons not sweets. Confusion between medicinal products may, therefore, be life threatening, not merely inconvenient. Noting the frailty of hlfman nature and the pressures placed by society on doctors, there should be as many clear indicators as possible to distinguish two medicinal products from each other. It is not uncommon that in hospitals, drugs can be requested verbally and/or under critical/pressure situations.
Many patients may be elderly, infirm or illiterate. They may not be in a position to differentiate between the medicine prescribed and bought which is ultimately handed over to them. This view finds support from McCarthy on Trade Marks, 3rd Edition, para 23.12 of which reads as under "The tests of confusing similarity are modified when the goods involved are medicinal products. Confusion of source or product between medicinal products may produce physically harmful results to purchasers and greater protection is required than in the ordinary case. If the goods involved are medicinal products each with different effects and designed for even subtly different uses, confusion among the products caused by similar marks could have quantum of proof of confusing similarity for drugs and medicinal preparation. The same standard has been applied to medicinal products such as surgical sutures and clavicle splints." 22. Having regard to the aforesaid well settled rules for comparison of the marks and having the fact in view that the marks are to be compared as a whole and also having the other factors in mind such as nature of marks and goods, trade channels, etc., the impugned trade mark is held deceptively similar to the opponents' registered trade mark. I do agree with the arguments advanced by Mr. Ramasarma that the impugned mark is nothing, but it is more or less identical to the opponents' mark. The applicants' have adopted the opponents' mark by adding letters 'OP' in middle of the said mark.
In Win Medicare Ltd. v. Somacare Laboratories, 'DICLOMOL' held similar to 'DICMOL'.
In Com Products Refining v. Shangrila Food Products, 'Glucovita' held similar to 'Gluvita'.
23. The adoption of the impugned mark being subsequent to the opponents' said mark is considered as false and dishonest. The applicants' mark whatsoever, being without user does not create any special circumstances for consideration under Section 12(3) of the Act on honest concurrent user. Hence, objection raised under 12(1) of the Act is sustained.
24. Next, I will take up the opponents' objection raised under Section 11(a) of the Act, this objection is apparently based on the alleged use and reputation of the opponents' trade mark 'BACTRIM'. It is well settled that when an opposition under Section 11(a) is based on the alleged use and reputation of the opponents' trade mark, before the objection can be sustained. It is necessary for the opponents to establish a reputation in trade in connection with the said mark, before the Tribunal or Court will proceed to consider whether having regard to that reputation the possibility of confusion upon reasonable user of the mark applied for will arise as held in Arthur Fairest' Application, (1951) 68 RFC 179 at page 207 and Haya Kawa Electricity Co. Ltd. v. Associated Electricals, (1974) 1 MLJ 392. Reputation is a question to be established by evidence. The reputation required is that of a mark or name used in relation to some goods or business; in other words the mark or name is known to a large number of persons as connected with certain goods or business. The burden of proof is on the person, who alleges reputation. The material date for establishing is the date of application for registration. Since the right of the parties are to be determined as on that date. It is held in Pan Press Case (1948) 65 RFC 193 at page 197 that if no such reputation is established by the person invoking the Section, the Registrar or the Court will not take into account events which have happened after the material date. Keeping these time tested and well established legal principles in mind let me consider whether the opponents have discharged the preliminary onus cast upon them to establish the use and reputation of their mark.
25. The opponents have filed evidence under Rule 53 by way of an affidavit of Peter Zigler, the holder of the opponents company alongwith supporting documents i.e. certificate from Chartered Accountant showing therein annual sales figure of the opponents' goods sold under the trade mark 'BACTRIM' from the year 1981 to 1990-91, a number of invoices from Roche Products Ltd. (Regd. User of the opponents' mark) for a period from 11.3.1981 to 26.12.1984 and medical advertisement of the mark all being documents marked as Annexure 'A' to 'C respectively denying therein each and every statement/contention/averment put forward by the applicants in the counter statement except what is the matter of record and specifically admitted by them.
26. In sub-para (d) of para 14 of the affidavit, the opponents company is sweared to be the proprietor of the trade mark 'BACTRIM' registered in India under No. 250035 as of 20.6.1968 and the same has been affirmed and stated to have been used in India for many years past. The opponents have stated and affirmed the annual sales turnover of their product sold under the said trade mark 'BACTRIM' from the year 1981 to 1990-91. The annual sales turnover has been shown in Crores. The sales figure shown as Rs. 4,05,25,500 in 1981 rose to Rs. 18,25,91,500 in the year 1989-90 following as Rs. 14,64,07,500 in the year 1991.
27. In paras 7 and 8 of their affidavit, the opponents have affirmed and stated to have sold their products under the said mark 'BACTRIM' exclusively and extensively and acquired an enviable goodwill and reputation all over the country.
28. The use of the opponents' said mark all over India, reputation and goodwill acquired by the said trade mark during the course of trade and the annual sales turnover as stated and affirmed above are corroborated with supporting documents namely, certificate dated 13.2.1992 from the Chartered Accountant, invoices for the period from 11.3.1981 to 26.12.1984 and medical advertisement marked as Annexure 'A' to 'C respectively. Invoices annexed to the said affidavit as Annexure 'B' reveal that the opponents have been selling their goods during the period from 1981 to December, 1984 in the States of Bihar, Kerala, Orissa, Andhra Pradesh, West Bengal, Madhya Pradesh, Gujarat covering thereby the major part of India. One of the medical advertisements of the said mark reveals an offer of scheme to retailers medical stores to get two strips X 10 tablets free on purchasing 48 strips X 10 tablets of 'bactrim d.s.' from the Voltas Stockists of the opponents/registered user for a period 1.7.1991 to 6.8.1991.
29. In sub-para (b) of para 14 of the said affidavit, the opponents have strongly and emphatically repudiated the adoption of the marie by the applicants and turmed the explanation given by the applicants regarding adoption of the mark as farfetched and unreasonable.
30. On the other hand, the applicants have filed evidence in support of their application by way of an1 affidavit of B. Rosaiah, the proprietor of the applicants firm alongwith two invoices dated 13.8.1994 and a specimen of cartoon of 'BACTOPRIM D.S.' marked as Ex. 'A' and Ex. 'B' respectively. The applicants have used the mark only for seven months as on the date of application, it has been subject to the jurisdiction of Vijayawada, i.e. the manufacturing place of the applicants, as observed from the above mentioned two invoices marked as Ex. 'A'. So, the evidence filed is not considered satisfactory so as to admit the applicants' claim for registration under Section 12(3) of the Act on honest concurrent user. Though, two invoices annexed to on applicants' affidavit are not indeed xerox copies of original invoices, they appear to have been manipulated and annexed to the affidavit just to defend their claim of use of the impugned trade mark yet the adoption of the impugned mark by the applicants' being subsequent to the opponents' adoption is considered to be false and dishonest.
31. The opponents also filed reply evidence under Rule 55 by way of an affidavit of the same deponent affirming and reiterating the contents of their earlier affidavit filed under Rule 53 and repudiating the denial of their contents by the applicants in their evidence therein.
In their reply evidence, the opponents said that the copies of two invoices filed as evidence of use were not xerox copies of the original invoices, but were embossed on some, other different matter which was quite vivid and they challenged the said invoices and called upon the applicants to produce unimpeachable evidence. The opponents filed an additional affidavit of Mickel Emenegger, an authorized signatory of the opponents' company as a part of reply evidence by filing an Interlocutory Petition dated 26.7.1996 stating and affirming therein.
32. That certain facts, which are supported by official documentary proof were not stated in our earlier affidavits, only on account of inadvertence. The omission to state such facts is neither willful nor wanton. Hence, this Additional Affidavit by way of reply, together with quite a few Exhibits which may kindly be taken on record.
33. That the Opponent (Hoffmann-La Roche AG, Switzerland) has licenced Messrs. Roche Products Ltd., Bombay (India), now known as Pirmal Health Care Ltd., Bombay to use the opponent's registered Trade Mark No.250035-5 BACTRIM and such licenced use by the said user has since been registered under PR (Ru-6169 to 6170/PRU/244) dated 19th August, 1992.
The said Registered User is valid upto 26th October, 1996.
34. That the opponent has applied on 6th May, 1996, for the extension of the said Registered User.
35. That the Annexures already filed have been so filed on the Opponent's behalf by the Registered User of the opponent. Copies of the Registered User Certificate dated 19th August, 1992 and Opponents application dated 6th May, 1996 for extension are submitted herewith collectively.
36. That the said Roche Products Ltd., has since been rechristened as Pirmal Health Care Ltd., by virtue of Certification of incorporation from the Registrar of Companies, Maharashtra. So, Pirmal Health Care Ltd., are now the Registered Users of the Registered Trade mark No.250035 BACTRIM.37. The said Interlocutory Petition was allowed by the learned Deputy Registrar vide his order/decision dated 12.2.2001 and the name as Piramal Health Care Limited was taken on record as the name of the registered user of the opponents by virtue of certificate of incorporation from the Registrar of Companies and above mentioned documents.
38. Thus, the opponents have discharged the preliminary onus cast upon them and established the user and reputation of the said mark. In view of this, the use and registration of the impugned mark is likely to cause confusion and deception among the public, registered medical practitioner, hospitals and trade. The objection raised under Section 11 (a) is, therefore, sustained.
39. As regards objection raised under Section 11(e) of the Act, in view of my findings that the impugned trade mark is deceptively and confusingly similar to the opponents' registered trade mark, and the adoption of the impugned trade mark is false and dishonest, the mark applied for is not entitled for protection in the Court of law. The objection raised under Section 11(e) is, therefore, sustained.
40. Now, I will take up the objection raised under Section 9 of the Act. Under this objection, the opponents alleged that the applicants' mark was neither adopted to distinguish nor capable of distinguishing their goods. As per tests of acquired distinctiveness as the applicants' mark is held deceptively similar to the opponents' trade mark, it does not speak to be incapable of application to the goods of the opponents. Hence, the objection raised under Section 9 of the Act is sustained.
41. Next, I pass on to consider the opponents' objection raised under Section 18(1) of the Act. In view of my findings that the rival marks are deceptively similar and the adoption of the impugned mark is held false and dishonest, the applicants can not be the proprietors of the mark under Section 18 of the Act. On the other hand, the opponents made out their case successfully by filing a cogent and satisfactory evidence in support of their claim, they are considered to be the proprietors of the mark. The objection raised under Section 18(1) of the Act is, therefore, sustained.
42. Finally, I am called upon to exercise the discretion vested in me under Section 18 (4) of the Act. Having sustained the opponents' all objections, I find no reason to exercise my said discretion under Section 18(4), adversely to the opponents. I am satisfied that the opponents have been using the trade mark since the year 1968 and they are the registered proprietors of the said mark under No. 250035 as of 20.6.1968.
43. Whereas, the applicants though have no case, yet they do not appear to be keen for registration of the impugned trade mark as they have neither attended the hearing fixed in respect of Interlocutory Petition as well as the final hearing and countered the arguments advanced by the learned advocate on behalf of the opponents, nor convinced this Tribunal as to how and why the impugned trade mark is not deceptively similar to the opponents' registered trade mark and thus, they appear to have lost their interest in prosecuting the impugned application.
Moreover, hearing notice sent to the applicants is returned by the postal authorities with their remark "name different." 44. As a result, Opposition No. MAS-2503 is allowed and Application No.434938 in class 5 refused registration.
45. It is hereby further ordered that the applicants shall forthwith pay the opponents a sum of Rs. 490/- (Rupees Four Hundred and Ninety Only) as costs of the present proceedings.
46. Signed and sealed at the Trade Marks Registry, Chennai (Branch) on this the 21st January, 2002.