1. A trade mark consisting of the words 'RARE BLEND' was sought for registration in class 33 for the goods "wines, spirits and liquors" under Application No. 1163330 dated 1st January, 2003 by the above named Applicants. The Mark was proposed to the used on the date of application. Eventually the application was advertised before acceptance under Section 20(1) proviso vide Trade Marks Journal No.Mega 5 dated 14th November, 2003 sat page 7490.
2. On 23rd June, 2004 a notice of opposition on Form TM-5 was lodged by the above named Opponents objecting to the registration of the aforesaid impugned mark of the Applicants on the following grounds: That the Opponent is an old and well established association of members selling there Scotch whisky all over the world including India under international brand names and that there are 57 members engaged in the distillation and/or blending and/or sale of Scotch whisky.
3. That principal aim of Opponent is to protect the interest of Scotch whisky trade and it is vigilant in safeguarding and protecting the interest of its members.
4. That in pursuance of the said objective, the present opposition is filed to oppose the registration of the impugned mark consisting of the words 'RARE BLEND' which is in violation of Sections 2, 9 and 18(1) of the Act, on account of the fact that the words 'RARE BLEND' are devoid of any distinctive character and, therefore, not registrable under Section 9(1) of the Act.
5. That the word 'BLEND' is used in whisky industry to describe a whisky which is a mixture of two or more whisky and that it is thus defined specifically by the European union.
6. That the words 'RARE BLEND' are used regularly on inter alia, Scotch whisky label to indicate the quality of the product and are hence common to the trade.
7. That the Applicants cannot be given exclusive right to monopolize the descriptive words and that in fact it cannot be termed as a trade mark within the meaning of Section 2(1)(zb) of the Act.
8. The Opponents took objections to the registration of the impugned mark under Sections 2, 9 and 18 of the Act and also prayed for exercise of the discretion of this Tribunal, adverse to the Applicants, under Section 18(4) of the Act.
9. In their counter-statement filed on 3rd May, 2005 the Applicants denied the various averments of the Opponents and stated that the impugned mark was adopted by them in the year 2003. Rest of the counter-statement contains mere denied of the Opponents' averments.
10. The Opponents filed their evidence under Rule 50 vide their letter dated 8th August, 2005 by way of an affidavit of Shri I.G. Barclay along with Annexures A to M-3-as per details contained therein. The Applicants merely relied on the statements made in the counter-statement and eventually the matter was set down for hearing which took place on 2nd May, 2006 in presence of Shri V. Vutts, Advocate for the Opponents and Shri S.K. Dan, Advocate for the Applicants.
11. Shri V. Vutts, learned advocate for the Opponents stated that the words 'RARE BLEND', the impugned mark cannot qualify for registration as the same is devoid of any distinctive character and is also descriptive to the goods. He stated that the words 'RARE BLEND' or the word 'BLEND' are used commonly in this trade to describe the characteristic and quality of the product. He stated that the word 'BLEND' is used in the whisky industry to describe the mixture of two or more whisky and that the majority of Scotch whisky sold throughout the world is in fact blended Scotch whisky. He stated that the Scotch whisky industry has first introduced the word 'blending' in the early 1860s and that the word 'BLEND' is defined in European First Law under Article l(3)(d) of EC Regulation 1576/89. He stated that the word 'RARE' is common English word meaning "excellent" or "uncommon" and is regularly used as a description of Scotch whisky or any other alcoholic drink on its labels. Shri Vutts took me through the evidence filed under Rule 50 by the Opponents in support of his submissions and stated that the words 'RARE BLEND' are being used internationally including India as a descriptive term in respect of the goods in question and that it cannot be termed as a trade mark under Section 2 of the Act.
12. Shri S.K. Dan, learned advocate for the Applicants refuted the submissions of Shri Vutts and stated that the impugned mark is a combination of the two words and, therefore, it is entitled to registration as a trade mark.
13. I have considered the submissions of both the learnsed advocates and have gone through the records. It is correct that the impugned mark 'RARE BLEND' is highly descriptive and characteristic of the goods in question and, therefore, cannot qualify for registration in terms of Section 9(1)(a) of the Act, being devoid of any distinctive character.
Moreover, the words 'RARE BLEND' or the word 'BLEND' is being used generally in whisky trade including Scotch whisky to describes the characteristic and quality of the goods. I have no hesitation in upholding the objections of the Opponents with regard to the non-registrability of the impugned mark being highly descriptive and laudable of the goods and, therefore, cannot be monopolized by any one.
Further the impugned mark consisting of the words 'RARE BLEND' is to be left open for use for other traders in the trade to describe legitimately their goods and hence the Applicants cannot be conferred any exclusive rights over these words. Also such descriptive words cannot form the subject matter for registration as a trade mark as the same will be hit by the provisions of Section 2(1)(zb) of the Act. It is an admitted fact at the hearing that the Applicants are yet to use the impugned mark for the goods in question in spite of the fact that the application was filed in the year 2003. Keeping in view the overall facts and circumstances of the case, more particularly, the fact that the mark is still proposed to be used even today, no harm or prejudice is going to be caused to the Applicants if the application is refused registration vide the discretion vested with this Tribunal under Section 18(4) of the Act and the same is accordingly ordered.
14. In view of the foregoing the Opposition No. KOL-179621 is allowed with costs and the Application No. 1163330 in class 33 is refused registration. The Opponents are entitled to a cost of Rs. 3500 (Rupees three thousand five hundred only) of these proceedings.