Court : Intellectual Property Appellate Board IPAB
..... objections under sections 11(a), 11(e), 12(1) and 18(1) of the act except for section 9 of the act; (g) the learned registrar ought to have considered the fact that the appellant has adopted the trade mark nice in 1971 and had been using the same continuously and extensively; (h) the learned registrar ought to have considered the fact that the respondent no.1 had not filed any evidence in support of his application; (i) the application for registration has been filed on 01.11.1989 claiming user since 11.07.1988, the use of the mark is for a period of one year ..... the appellant filed the appeal on the following grounds that :- (a) the impugned order is contrary to the facts and evidence on record; (b) the impugned order is contrary to the provisions of law; (c) the learned registrar had considered the matters which were not to be considered and omitted to consider those which were proper for consideration; (d) the learned registrar ought to have allowed the apposition and refused registration; (e) the respondent no.2 had not made any request during the course of argument to amend the trade mark and even if made, the respondent no.1 ought to file .....
Tag this Judgment!Court : Intellectual Property Appellate Board IPAB
..... the learned counsel for the appellant further contended that the form tm-16 was only to rely on the earlier registration and based on that the respondents mark was barred for registration as per the provisions of section 12(1) of the act. 9. ..... the appellant herein had filed their notice of opposition objecting to the registration of the trade mark rahat on various grounds on 03.06.1991. ..... the points in the said paragraphs were to say that they had acquired the right from their predecessors as early as 08.12.1976 and also that their trade mark rahat rooh was registered and as such the impugned mark was barred for registration under section 12 (1) of the trade marks act, 1999 (hereinafter referred to as the act). 4. ..... kalgonda as follows:- all amendments ought to be allowed which would satisfy the two conditions (a) of not working injustice to the other side and (b) of being necessary for the purpose of determining the real questions in controversy between the parties amendment should be refused only where the other party cannot be placed in the same position as if the pleadings had been originally correct, but costs. ..... the counsel also submitted that the registrar had dealt the assignment agreement dated 31.03.1989 which was not before him. ..... the counsel further submitted that the assignment agreement was entered into as early as 1989 whereas the application on form tm-24 was filed in the year 1992 after a long delay. 13. .....
Tag this Judgment!Court : Intellectual Property Appellate Board IPAB
..... now dealing with the merits of the case, the main issue as to allowing the tm-16 application and whether the registration would be in contravention of the provisions of section 11 of the act. 24. ..... , wherein it was held that the registrar may permit even new ground by way of amendment and submitted that the registrar should have allowed the amendment; (ii) 2007 (34) ptc 346 (ipab) titan industries limited vs. ..... 2 has decided the application for amendments after going into the matter and has observed that in view of the judgement of this board dismissed the amendment application. ..... the registrar had also allowed the interlocutory petition filed by the applicant for amending the date of user and the change of companys name and address while deciding the main opposition without giving an opportunity to the opponent to put forth their contentions. ..... the counsel further submitted that the application for amendment was filed only after the affidavit of evidence was filed and it only goes to show the appellants filing of an application for amendment was an after thought. ..... the opposition was again heard and the impugned order was passed stating that in view of the citation given by the opponent the tm- 16 for amendment is cancelled where no reason has been given. ..... , wherein it was held that the registrar may permit amendment which does not substantially alter the mark and submitted that here there is no substantial alteration or amendment in the mark. 14. .....
Tag this Judgment!Court : Intellectual Property Appellate Board IPAB
..... the registration would definitely cause confusion and description among the trader and public and would be in continuation of the provisions of section 11 of the act. 4. ..... the appellants opposed the registration on the ground that they are in the business of medicinal and pharmaceutical preparations for several years ..... usha vice chairman the original appeal arises out of the order dated 30.3.2007 dismissing the opposition no.kol-217834 and allowing the application no.1326200 in class 5 to proceed to registration after amending the goods, passed by the deputy registrar of trade marks. 2. ..... the respondents herein filed an application for registration of the label mark consisting of the word sense on 16.12.2004 under no1326200 in class 5 ..... the respondents to file necessary application to restrict their use only for the state of orissa and after notification in the trade marks journal, the trade mark be registered and the opposition is therefore dismissed. 8 ..... when the rival marks are held not to be deceptively similar and in view of the fact that the respondents are using the trade mark after obtaining drug license in the state of orissa, they can claim proprietary right under section 18 (1) of the act. ..... the respondents were directed by the registrar to file tm-16 form for restricting the sale to the state of orissa. ..... the mark sense applied for registration is used in tablets which are consumed by pregnant women ..... the respondents have in fact restricted their sales only to the state of orissa. .....
Tag this Judgment!Court : Intellectual Property Appellate Board IPAB
..... (c ) the first respondent has been using the impugned trade mark for about one year and more on the date of application for registration and they are entitled to claim to be the proprietor of the trade mark and the registration is in accordance with the provisions of section 18(1) of the act. 3. ..... if considering all the circumstances, you come to the conclusion that there will be a 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 a confusion in the mind of the public which will lead to confusion in goods, then you may refuse the registration or rather you must refuse the registration in the case. 16. ..... in such circumstances, the possibility of confusion is not present and the registration of the impugned trade mark will not be in contravention of the provisions of the act. 19. ..... the registration of the trade mark recibion is in contravention of the provisions of sections 9,11,12 and 18 of the act. ..... the main issue that arises for consideration is whether the rival marks recibion and cibion are deceptively similar and if so whether the registration of the trade mark recibion would lead to confusion. 15. ..... the first respondent herein filed an application for registration of the trade mark recibion under application no.517814 in class 5 in respect of medicinal and pharmaceutical preparations on 03.10.1989 claiming user since 01.04.1987. .....
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..... the registration has been obtained in contravention of the provisions of sections 9, 11, and 18 of the act. 5. ..... being aggrieved by the said registration, the applicants have filed this rectification application on the ground that the 1st respondent has misled the registrar by stating that he is the sole owner of the trade mark, obtained registration of the trade mark without any bonafide intention to use. ..... to say that when the firm is the proprietor of the trade mark due to non dissolution thereof, the applicant could not have applied for registration of the trade mark in his name as he is not a person aggrieved as a partner cannot have a separate identical business in competition to the firms business. 15. ..... the closure of the applicant firm was informed to the commercial tax officer on 31.03.2005 and an order dated 11.07.2005 was passed by the officer not renewing the sales tax registration of the firm sakthi hall . ..... when the trade mark sakthi hall is in dispute, the 1st respondent also seems to have not been using it as a trade mark but has filed an application for registration and obtained registration, in fact, both have been using it as a trading style in the same area. 18. ..... the applicant has in the year 2005 applied for registration of the trade mark claiming user since 1979, when the business was already closed. ..... 133874 in class 25 from the register of trade marks under the provisions of the trade marks act, 1989 (hereinafter referred to as the act). 2. .....
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..... for all the above reasons, the appeal is allowed and the registration is set aside. ..... therefore section 55 of the act does not apply; (b)the respondent having furnished the address of service as required by the proviso to section 18(3) of the act cannot change his stand and claim that they have a working office at delhi; (c)the evidence has not been filed as per rule 54 of the rules; (d)written submissions signed by counsel or a shareholder cannot take the place of pleadings signed by the party unless there is explanation for the absence or inability of the party to sign the pleadings; (e) other special circumstance under section 12(3) of the act must be pleaded ..... the registrar hears the party, considers its evidence and the registrar decides whether the registration is to be permitted and if it is to be permitted whether it should be subjected to conditions or limitations. ..... he submitted that the respondent cannot rely on any evidence not produced along with the counter statement, and he most certainly cannot rely on documents filed along with the registration application. ..... it is true that the registrar may go beyond the pleadings under section 21 of the act but it is only for the purpose of invoking his power to deny registration as claimed, even though such plea was not taken by the appellant. ..... the amended pleadings filed by the appellant herein, is the amended notice of opposition. ..... (iii) air 1989 sc 1269 smt. .....
Tag this Judgment!Court : Intellectual Property Appellate Board IPAB
..... we also find the amended claims are beyond the scope of the claims as originally filed specifically in view of the addition of the following elements such as scan of outer surface is taken at an arbitrary initial position; obtaining at least twodata and registering the same with respect to the initial position;data to be fed in the computer (for calculation of tri-dimensional image of diamond and inclusion); registration of translations and rotations and the scan of outer surface; knowledge of reflecting index of the diamond; determination of cylinder for a direction of observation (claim 5) ; motoring ..... this can be seen from section 58 of the act which provides that in any proceedings for revocation if it is decided that the patent is invalid the appellate board or the high court may allow amendment under the section instead of revoking the patent. ..... evans medical limited - 1989 (1) fleet streetreports 561 the principles in respect of law on amendment of specification/claims have been enunciated in the above mentioned case in para 2 at page 569 as under: "the discretion as to whether or not to allow amendment is a wide one and the cases illustrate some principles which are applicable to the present case. ..... on a mere look of section 8-a of the act, we are of the view that in deciding the appeal under section 8-a of the act, the high court has got very wide powers. .....
Tag this Judgment!Court : Intellectual Property Appellate Board IPAB
..... it is also to be noted that section 47 of the patents (amendment) act, 2002 states that for chapter xix of the principal act, the following chapter shall be substituted, namely, chapter xix appeals to the appellate board section 47 of the patents (amendment) act, 2002 substituted the earlier section 116 of the original act as section 117a which deals with the appeals to the appellate board. ..... , before the final patent is granted and the appeal for the aggrieved party against the order passed by the controller would be available before the high court under section 116 (2) of the principal act for the reason that section 47 of the patents (amendment) act, 2002, has not been brought into force though they continue to remain in the statute books. ..... 85/del/95 by way of third party representation opposition under section 25 (1) of the patents act, 1970, [as amended by the patents (amendment) act, 2005 (hereinafter referred as the act)] before the honble high court of delhi bearing no. ..... but by the time the registry of the honble high court has scrutinized the appeal and numbered the appeal, the notification of the government of india bringing into force of section 47 of the patents (amendment) act, 2002 w.e.f ..... mohar singh (1955) 1 scr 893 held that the claim of the respondent mohar singh, as an evacuee under the east punjab refugees (registration of land claims) act, 1948 to be false and also an offence under the act. ..... the motor vehicles act, 1988 came into force with effect from 1.7.1989. .....
Tag this Judgment!Court : Intellectual Property Appellate Board IPAB
..... iii) as the goods covered under the impugned registration is also the same, the registration would be contrary to the provisions of section 12(1) of the trade and merchandise marks act, 1958 (hereinafter referred to as the act) iv) the second respondents mark has been used in many countries and thus enjoy a good reputation all over the world. ..... we, therefore, find that the goods and marks being identical, there was every possibility of confusion being caused among the public and the registration, if granted would be in contravention of the provisions of section 11 of the act. 19. ..... he had also held that the second respondent had filed sufficient documents to prove their extensive use by way of advertisement and sales and had held that the registration of the impugned mark shall be contrary to the provisions of section 11(a) and (e) of the act. 4. ..... the registrar had on the above points refused the registration of the application no.512242 and allowed the opposition del 8938. 7. ..... we, therefore, are of the view that the registration is void and cannot be used as a valid certificate. 17. ..... in the instant case, we find that the mark has been applied for registration on 21.06.1989 claiming user since 01.04.1985. ..... (circuit bench at new delhi) hon'ble ms.s.usha technical member: the appellant herein filed an application for registration of the trade mark sony under application no.512242 in class 18 in respect of brief cases and luggage carriers on 21.6.1989 claiming user since 1.4.1985. .....
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