Court : Intellectual Property Appellate Board IPAB
..... the rectification matter would decide the validity of the registration. 8. ..... the brief facts of the case are that the 1st respondent (petitioner in the miscellaneous petition) filed an application for registration of the trade mark helix in class 16 on 24th september, 1986. ..... as regards the miscellaneous petition no.104/2008 for direction by this honble board to the petitioner to amend the petition and to provide the latest address of the parties, we find no grounds made out in the application and hence dismissed. ..... the appellant herein (respondent in the miscellaneous petition) opposed the said registration and the opposition was dismissed on 5th march, 1999. ..... during the course of the argument, when this board had sought clarification as to the stage of the rectification proceedings and as to the completion of the procedural aspect, the counsel of the parties were not in a position to clarify the same. 16. ..... no.104/2008 sought a direction from this appellate board to direct the appellant to amend the petition and to provide the latest address of the parties. 2. ..... the appellant in the meantime, filed a civil suit no.1751 of 1995 before the delhi high court against the 1st respondent and also filed an interim application to stay the suit under section 111 of the trade and merchandise marks act, 1958. ..... apart from this, the act does not provide any powers to stay the rectification proceedings. .....
Tag this Judgment!Court : Intellectual Property Appellate Board IPAB
..... the assistant registrar refused the registration of the trade mark on the finding that ; a) the impugned trade mark has not acquired distinctiveness or is capable of being distinguished and so the objection under section 9 of the act is sustained; b) in any mark it is not the suffix that is the controlling sound but it is the prefix which makes the proximity of the marks. ..... on the following grounds:- a) the learned registrar erred in passing the impugned order b) the learned registrar ought to have dismissed the opposition and allowed the application for registration; c) the learned registrar ought to have held that the rival marks are neither identical nor deceptively similar; d) the second respondent misdirected himself in passing the impugned order; e) the registrar ought to have exercised his discretion while passing the impugned order; f) the learned registrar failed to apply to the correct test of exercising judicial discretion to the facts of the case; g) the ..... 23/09 for amendment of cause title is allowed. .....
Tag this Judgment!Court : Intellectual Property Appellate Board IPAB
..... the respondents; (e) that the second respondent failed to take note of the fact that the trade mark royal applied for registration by the first respondent was under opposition and not registered; (f) that the second respondent failed to record that the appellants are the proprietors of the trade mark thus erred in law and acted in contravention of the mandatory provisions of section 18 of the act; (g) that the second respondent erroneously held that the appellants are not entitled for the benefit of honest and concurrent user under section 12 of the act; (h) that the ..... the first respondent objected to the registration of the impugned trade mark on the ground that the registration would be in contravention to the provisions of sections 9(2) (a), 11(1)(b), 11(3), 12, 18(1) and 18(4) of the act. 4. ..... the predecessor in title of the first respondent had applied for and obtained registration of the trade mark label of which the word mark royal forms an essential feature bearing no.516228 in class 30 on 05.09.1989 claiming user from 18.01.1988. .....
Tag this Judgment!Court : Intellectual Property Appellate Board IPAB
..... the trade marks act, 1999 provide that any person may file notice of opposition to the registration but only a person aggrieved may file application for removal of trade mark from the register of trade marks or rectification of the register. ..... 50 to 52 of 2003 before the company law board, chennai on account of various oppressive acts and mismanagement in the affairs of the company and the company law board by order dated 7.3.2007 directed, amongst others, that the members of the companies shall reconstitute the board of directors; appoint the managing director by 3.4.2007; carry on the regular business in accordance with the articles of association of the companies and meet the statutory obligations. ..... arumugam is devoid of merits and is nothing but an attempt to defeat and dilute the legitimate rights of ownership in the trade mark milka which is enjoyed by the applicant company uninterruptedly since 1989 till now. ..... were incorporated in the years 1989, 1996 and 1997, respectively, having common shareholders and directors and he was the chairman of all the three companies from 1996 to 2003 and besides these, three sister concerns, pioneer bake house pvt. .....
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..... the counsel drew our attention to the exhibits annexure c and d of the appeal papers and stated that they were the notice of opposition and the form tm-16 where only the amendment was with regard to the list of registrations mentioned, the list of oppositions decided in favour of the appellants, amendment of the address for service of the appellant and verification para included as per the new act as was not under the old act when the notice of opposition ..... the four amendments are that (i) list of registrations granted (ii) a list of oppositions which were decided in favour of the appellants (iii)verification column added as per the new act and (iv) address for service change to be brought ..... to mention the registrations which were already pleaded by giving ..... when the matter reached this court, while affirming the order of the high court, the majority stated: ...it is, no doubt, true that, save in exceptional cases, leave to amend under order 6, rule 17 of the code will ordinarily be refused when the effect of the amendment would be to take away from a party a legal right which had accrued to him by ..... the counsel then relied on the provisions of section 21(5) and 21(7) of the act and stated that the registrar had powers to allow amendment of the notice ..... the court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying, was acting malafide, or that by his blunder, he had caused injury to his opponent which may not be compensated for by an .....
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..... now to identify if any the differences existing between the matters cited as forming the state of the art and the inventive concept of the claim or the claim as construed :- on or before the priority date of the invention claimed in the impugned patent, there does not exist any difference between the state of the art shown and the features claimed neither in the claims as granted of the impugned patent nor in the claims as amended of the impugned patent as seen below. ..... but it is a fact that the amendments made in the counter statement were in the knowledge of the applicant when the applicant had received the counter statement copy and had an opportunity to object the amendment sought and to state that the respondent had not followed the procedure and also a copy of the amendment notice had not been served on the controller as required under section 58(2) of the act. ..... the general principles on which such discretion should be exercised were summarised by aldous j in smith, kline and french laboratories ltd v evans medical ltd [1989] fsr 561 as follows: first, the onus to establish that amendment should be allowed is upon the patentee and full disclosure must be made of all relevant matters. .....
Tag this Judgment!Court : Intellectual Property Appellate Board IPAB
..... that any claim of the specification as amended would fall wholly within the scope of the claim of the specification before the amendment, 70 section 58 of the act, gives the court the power, in revocation proceedings in which the validity of a patent is put in issue, to allow the proprietor of the patent to amend the specification of the patent "in such manner, and subject to such terms ... ..... section 59 (1) of the act reads as follows: (l) no amendment of an application for a patent or a complete specification or any document relating thereto shall be made except by way of disclaimer, correction or explanation, and no amendment tehreof shall allowed, except for the purpose of incorporation of actual fact, and no amendment of a complete specification shall be allowed, the effect of which would be that the specification as amended would claim or describe matter not in substance disclosed or shown in the specification before the amendment, or that any claim of the specification as amended would not fall wholly within the scope of a claim of the specifiation ..... the general principles on which such discretion should be exercised were summarised by aldous j in smith, kline and french laboratories ltd v evans medical ltd [1989] fsr 561 as follows: first, the onus to establish that amendment should be allowed is upon the patentee and full disclosure must be made of all relevant matters. .....
Tag this Judgment!Court : Intellectual Property Appellate Board IPAB
..... section 58 of the act, gives the court the power, in revocation proceedings in which the validity of a patent is put in issue, to allow the proprietor of the patent to amend the specification of the patent "in such manner, and subject to such terms ... ..... amendment of claims respondent in the revocation application came up with an unnumbered miscellaneous petition on 15-9-2010 with a revised set of claims, stating that the amendments are merely directed to a combination of granted claims thereby limiting the scope of the claims and requested that the revised claims filed under section 58 of the act may be considered rather than revoking the entire patent. 81. ..... the general principles on which such discretion should be exercised were summarised by aldous j in smith, kline and french laboratories ltd v evans medical ltd [1989] fsr 561 as follows: "first, the onus to establish that amendment should be allowed is upon the patentee and full disclosure must be made of all relevant matters. .....
Tag this Judgment!Court : Intellectual Property Appellate Board IPAB
..... 289appeal against the order of the controller in giving directions to the co-owners of patentsection 5110appeal against the order of the controller with respect to the patents of additionsection 5411appeal against the order of the controller with regard to the restoration orf lapsed patentsection 6012application against the order of the controller in reference to the procedure adopted in relation to the restoration of the lapsed patentsection 6113appeal against the order of the controller with respect to the surrender of patentssection 6314appeal against the order of the controller revoking the patent in public interestsection 6615appeal against the order of the controller with reference to registration ..... or requiring amendment to the patent applicationsection 152appeal against the order or the controller with respect to the division or applicationsection 163appeal against the order of the controller with respect to the post-dating of the applicationsection 174appeal against th3e order of the controller with regard to anticipationsection 185appeal against the order of the controller with reference to potential infringementsection 196appeal against the order of the controller with respect to the substitution of applicantssection 207appeal against the order of the controller in a post grant oppositionsection 25(4)8appeal against the order of the controller with reference to the mentioning of the inventor in the patentsection .....
Tag this Judgment!Court : Intellectual Property Appellate Board IPAB
..... trade mark may be taken off the register in respect of the goods or services in respect of which it is registered on application made in the prescribed manner to the registrar or the appellate board by any person aggrieved on the ground either (a) that the trade mark was registered without any bona fide intention on the part of the applicant for registration that it should be used in relation to those goods or services by him or, in a case to which the provisions of section 46 apply, by the company concerned or the registered user, as the case may be, and that there has ..... it is pointed out that in form no tm-1, the applicant has stated that they have adopted the trade mark in 1989 and started use of the mark in 1994. ..... such being the position, the trade mark registered is liable to be removed on the ground of non-use as per the provision under section 47 of the trade marks act, 1999. ..... but in the affidavit produced, in para 5 it is stated by them that they have adopted the mark in 1989 and use of the mark was from 1980. ..... they have adopted the trade mark cillamin in the year 1989 and they were using the said mark from 1994 onwards. ..... it is pertinent to note that the applicants in their pleadings contended that they have adopted their trade mark cillamin right from the year 1989. .....
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