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M/s. Matrumal Dhannalal Oil Mills, Uttar Pradesh v/s Om Prakash Trading as M/s. O.P. Cotton & Oil Mill, Haryana


Company & Directors' Information:- THE COTTON CORPORATION OF INDIA LIMITED [Active] CIN = U51490MH1970GOI014733

Company & Directors' Information:- J. K. COTTON LIMITED [Active] CIN = U17111UP1924PLC000275

Company & Directors' Information:- UTTAR PRADESH TRADING CO LTD [Active] CIN = U51109WB1951PLC019450

Company & Directors' Information:- P A S COTTON MILLS PRIVATE LIMITED [Active] CIN = U17111TN2005PTC058104

Company & Directors' Information:- V R A COTTON MILLS PRIVATE LIMITED [Active] CIN = U15311PB1997PTC020061

Company & Directors' Information:- PRAKASH COTTON MILLS PRIVATE LIMITED [Active] CIN = U99999MH1948PTC006219

Company & Directors' Information:- P D COTTON PRIVATE LIMITED [Active] CIN = U52321GJ2007PTC051857

Company & Directors' Information:- N K OIL MILLS PVT LTD [Active] CIN = U15201GJ1994PTC022669

Company & Directors' Information:- OM INDIA TRADING COMPANY PRIVATE LIMITED [Active] CIN = U01405AS1975PTC001628

Company & Directors' Information:- B P OIL MILLS LIMITED [Active] CIN = U15142UP1965PLC003232

Company & Directors' Information:- C A V COTTON MILLS PRIVATE LIMITED [Active] CIN = U17115TZ1987PTC002014

Company & Directors' Information:- R. I. COTTON PRIVATE LIMITED [Active] CIN = U17120GJ2010PTC061139

Company & Directors' Information:- V K S M COTTON MILLS LIMITED [Active] CIN = U17111TZ1998PLC008682

Company & Directors' Information:- D D COTTON PRIVATE LIMITED [Active] CIN = U17120MH1994PTC156054

Company & Directors' Information:- K P L OIL MILLS PRIVATE LIMITED [Active] CIN = U15142KL1983PTC003685

Company & Directors' Information:- P K COTTON MILLS PRIVATE LIMITED [Active] CIN = U17111DL2004PTC130281

Company & Directors' Information:- P. I. COTTON PRIVATE LIMITED [Active] CIN = U17120GJ2007PTC050747

Company & Directors' Information:- B V COTTON PRIVATE LIMITED [Active] CIN = U17111GJ2004PTC044704

Company & Directors' Information:- S K COTTON PRIVATE LIMITED [Active] CIN = U17110GJ2006PTC047511

Company & Directors' Information:- S R COTTON PRIVATE LIMITED [Active] CIN = U17120KA2013PTC071881

Company & Directors' Information:- S D S COTTON PVT LTD [Active] CIN = U17115PB1991PTC011007

Company & Directors' Information:- K P G COTTON MILLS PRIVATE LIMITED [Active] CIN = U17115TZ1993PTC004509

Company & Directors' Information:- D B V COTTON MILLS PRIVATE LIMITED [Active] CIN = U17115TZ1982PTC001145

Company & Directors' Information:- OM COTTON PRIVATE LIMITED [Strike Off] CIN = U17121GJ2006PTC049375

Company & Directors' Information:- P A COTTON PVT LTD [Active] CIN = U74999WB1992PTC055525

Company & Directors' Information:- D D COTTON PRIVATE LIMITED [Not available for efiling] CIN = U17115PB1994PTC014981

Company & Directors' Information:- N K B OIL MILLS PRIVATE LIMITED [Active] CIN = U15142KL1999PTC013095

Company & Directors' Information:- K K K OIL MILLS PRIVATE LIMITED [Strike Off] CIN = U15142KL2000PTC013621

Company & Directors' Information:- S S COTTON MILLS PRIVATE LIMITED [Active] CIN = U17115PB1997PTC019918

Company & Directors' Information:- K S COTTON PRIVATE LIMITED [Active] CIN = U17299WB2003PTC096994

Company & Directors' Information:- S N OIL MILLS PRIVATE LIMITED [Strike Off] CIN = U15142HR1986PTC025702

Company & Directors' Information:- G. B. OIL MILLS PRIVATE LIMITED [Strike Off] CIN = U15326HR1985PTC019817

Company & Directors' Information:- J R COTTON MILLS PRIVATE LIMITED [Strike Off] CIN = U17111TN1996PTC034302

Company & Directors' Information:- R. OIL MILLS PRIVATE LIMITED [Strike Off] CIN = U15141DL1992PTC047883

Company & Directors' Information:- J K OIL MILLS COMPANY LIMITED [Strike Off] CIN = U15143UP1955PLC002570

Company & Directors' Information:- D C H COTTON MILLS PRIVATE LIMITED [Strike Off] CIN = U17111TZ1997PTC008130

Company & Directors' Information:- B D COTTON PRIVATE LIMITED [Active] CIN = U51909GJ1978PTC003234

Company & Directors' Information:- HARYANA COTTON MILLS PRIVATE LIMITED [Dissolved] CIN = U17111HR1991PTC031285

Company & Directors' Information:- L D COTTON MILLS PRIVATE LIMITED [Strike Off] CIN = U17291MH2014PTC256832

Company & Directors' Information:- A D COTTON MILLS PVT LTD [Active] CIN = U99999MH1970PTC014837

Company & Directors' Information:- G K COTTON PVT LTD [Active] CIN = U00309BR1982PTC001698

Company & Directors' Information:- N N OIL MILLS PRIVATE LIMITED [Strike Off] CIN = U15147MH1999PTC117989

Company & Directors' Information:- PRAKASH MILLS PRIVATE LIMITED [Strike Off] CIN = U17111TZ1955PTC000155

Company & Directors' Information:- R R COTTON PRIVATE LIMITED [Active] CIN = U17111DL1998PTC094459

Company & Directors' Information:- PRAKASH TRADING COMPANY PRIVATE LIMITED [Active] CIN = U51900MH1956PTC010661

Company & Directors' Information:- G. S. COTTON TRADING PRIVATE LIMITED [Active] CIN = U51900MH2014PTC259894

Company & Directors' Information:- C R COTTON INDIA PRIVATE LIMITED [Active] CIN = U17299DL2006PTC145903

Company & Directors' Information:- J & T OIL MILLS PRIVATE LIMITED [Strike Off] CIN = U15141KL2006PTC019754

Company & Directors' Information:- J J COTTON TRADING COMPANY PVT LTD [Strike Off] CIN = U01405WB1988PTC044088

Company & Directors' Information:- A AND R OIL MILLS PVT LTD [Strike Off] CIN = U15315CH1994PTC014265

Company & Directors' Information:- OM PRAKASH TRADING CO PVT LTD [Strike Off] CIN = U75143DL1971PTC005563

Company & Directors' Information:- V P K COTTON MILLS PRIVATE LIMITED [Strike Off] CIN = U17111TZ2000PTC009530

Company & Directors' Information:- P. S. OIL TRADING PRIVATE LIMITED [Strike Off] CIN = U51101MH2012PTC229237

Company & Directors' Information:- OM OIL COMPANY PRIVATE LIMITED [Strike Off] CIN = U51900MH2011PTC215294

Company & Directors' Information:- OM TRADING COMPANY PRIVATE LIMITED [Strike Off] CIN = U74140MP2003PTC016132

Company & Directors' Information:- PRAKASH COTTON COMPANY LIMITED [Not available for efiling] CIN = U99999MH1947PLC005927

    ORA 22 of 2007/TM/DEL

    Decided On, 13 October 2014

    At, Intellectual Property Appellate Board

    By, THE HONOURABLE MR. JUSTICE K.N. BASHA
    By, CHAIRMAN & THE HONOURABLE MR. SANJEEV KUMAR CHASWAL
    By, TECHNICAL MEMBER (TRADEMARKS)

    For the Applicant: None. For the Respondent: N.K. Anand, Arun Jha, Sunil Mishra, Shivendra P. Singh, Advocates.



Judgment Text

(Circuit Bench Sitting At Delhi)

Order (No, 139 of 2014)

K.N. Basha, Chairman:

In this case, Mr. S.K. Bansal, learned counsel appearing for the applicants has submitted during the earlier proceedings that he has not received any instructions from his clients. It is seen that on two earlier occasions also, i.e. on 28/04/2014 and 04/08/2014, the learned counsel for the applicants submitted that there was no instructions from their clients. In view of such position, this Bench has directed the Registry of the Board to send notice directly to the party i.e. to the applicants. On earlier two occasions, the learned counsel for the respondents was ready for arguments. Today, we see that the Registry has served notice to the applicants on 22/09/2014 in respect of today’s hearing. In spite of serving notice, neither the applicants nor their representative counsel is present today. Accordingly, we are constrained to proceed with the matter on merits.

2. Mr. N.K. Anand, the learned counsel for the respondents is present today and he has submitted a note of written submission.

3. We heard Mr. N.K. Anand and also perused the written submission put before the Bench by the learned counsel.

4. We have also perused the application filed by the applicants seeking for relief to rectify/remove the impugned trade mark from the Register of Trade Marks. We have also perused the counter statement filed by the respondent along with respective documents enclosed as annexures.

5. The applicants have filed petition seeking for relief of cancellation of the impugned trade mark of the respondents SHRI RADHA KRISHNA along with device of RADHA KRISHNA under No. 1229928 in class 31. The petitioner has claimed that they are the registered proprietors of the trade mark RADHA KRISHNA along with device of RADHA KRISHNA LABEL under No. 130471 in class 29 in relation to mustard oil (edible) as on 09/08/1947. It is claimed that they are the prior and honest adopters and exclusive and continuous user of the trade mark in relation to the goods and enjoying tremendous goodwill in the said trade mark. It is further stated in the application that the impugned trade mark of the respondents i.e. SHRI RADHA KRISHNA with device of RADHA KRISHNA is identical with/deceptively similar to the trade mark of the petitioner i.e. RADHA KRISHNA with device of RADHA KRISHNA. The goods of the respondent i.e. oil cake is same and similar nature of goods of the petitioner i.e. edible oil, oil cake etc. Therefore, it is contented that the impugned trade mark in relation to the impugned goods would deceive and cause confusion among the public. Accordingly, the impugned trade mark may be barred by virtue of Section 11 of the Trade Marks Act, 1999 (hereinafter referred to as the Act). The applicants are also contented in respect of non-use of the trade mark for more than fifteen years by virtue of section 47 of the Act. Therefore, applicants seek relief of cancellation or rectification of the impugned trade mark SHRI RADHA KRISHNA with device of RADHA KRISHNA under No. 1229928 in class 31.

6. The applicants in respect of their claim has submitted various documents namely, copy of the trade mark/label of the petitioner; copy of the registered trade mark/renewal certificates of the petitioner under No. 130471 in class 31; copy of the impugned trade mark/label of the respondents; copy of the impugned registration certificate of respondents under No. 1229928 in class 31; copy of registered copyright of petitioner under No. A-66428/04 and A-67728/04; copy of pending trade mark applications of the petitioner in class 29 and 31; copy of sales figure of the petitioner; copies of invoices, bills etc., in support of rights of said trade mark of the petitioner.

7. The respondents have filed their counter statement specifically mentioning that the goods of the petitioner comes under class 29, which is entirely different from the goods mentioned in the impugned trade mark under No. 1229928 in class 31 confined to specific item i.e. oil cake (Khal) and the said item is not meant for human consumption. It is stated in the counter statement that the respondents composite trade mark SHRI RADHA KRISHNA MURALI BRAND with device depicting Lord Shri Krishna and Radha with cow device is distinctive itself and registerable. In support of the same, the respondents produced copy of advertisement in the Trade Marks Journal No. 1328 dated 30th March 2005 along with a copy of the registration certificate as annexure R1 and R2.

8. It is specifically stated in the counter statement that the registered trade mark of the petitioner is under No. 130471 in class 29, which is confined to edible mustard oil which is an article for human consumption, unlike the item in relation to which the respondents trade mark No. 1229928 stands registered. It is contented that neither the marks nor the goods are similar in nature and description and therefore there is no valid objection raised by the petitioner. The respondents specifically denied the objections and allegations claimed by the applicants stating that yet another false claim is made by alleging that the respondents are not using their own trade mark or that the respondents have no intention to use the same or any other mark. None of the provisions under section 47 or section 57 hits the valid ground of the registration of the respondents trade mark under No. 1229928. The respondents mark is in actual use from the year 1998 and the petitioner has deliberately not disclosed the use of the same by the respondents for the past nearly ten years. Accordingly, it is stated that the application filed by the petitioner is liable to be dismissed.

9. The respondents in support of their claim in the counter statement produced a number of documents as Annexures R-1 to R-11 consisting of the impugned trade mark; copy of Registration Certificate of impugned trade mark; attested copies of civil proceedings; advertisements; copy of criminal complaint; invoices containing sales figures etc.

10. Mr. N.K. Anand, the learned counsel for the respondent would mainly contend that the impugned trade mark is registered under the name SHRI RADHA KRISHNA MURALI BRAND (Label mark) in class 31 in respect of oil cake (Khal) popularly described as cattle feed. It is not meant for human consumption. The learned counsel would point out that the applicants trade mark is only in respect of logo and not in respect of word mark i.e. either RADHA KRISHNA or MURALI BRAND and as such, it is not deceptively similar to that of the trade mark of the applicants. It is also pointed out that there is difference in respect of logo, as in the trade mark of the logo of the petitioner there is only RADHA KRISHNA whereas in the impugned trade mark it has both the device of cow with Radha Krishna and as such there is so much difference between the two. The learned counsel would also contend that the impugned trade mark is used by the respondents continuously right from the year 1998 and as such the opposition’s contention that 'no use more than five years' is not correct and the same is contrary to the facts. The learned counsel also placed reliance on the invoices and sales figures in order to establish their long and continuous use from the year 1998.

11. We have carefully considered the contentions raised by the learned counsel for the respondents. We also thoroughly scrutinized and perused the documents filed by both sides.

12. At the outset, we are constrained to state that our perusal of the impugned trade mark and the trade mark of the applicants would make it crystal clear that both of them are entirely different and distinct and it cannot be stated that the impugned trade mark is deceptively similar to that of the trade mark of the applicants. It is pertinent to note that the trade mark of the applicants makes it crystal clear that it is the logo and not the word RADHA KRISHNA or MURALI BRAND whereas the perusal of the impugned trade mark contains both the words namely SHRI RADHA KRISHNA MURALI BRAND and the logo with cow device. We are constrained to state that there is not only missing of word mark viz., RADHA KRISHA MURALI BRAND in the applicants trade mark but also the perusal of the two logos viz., applicants logo and the impugned logo makes it crystal clear that both of them are entirely different. Added to the above said factors, it is also pertinent to note that the applicants trade mark was registered in class 29 in respect of mustard oil which is exclusively meant for human consumption whereas the r

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espondents trade mark was registered under class 31 in respect of oil cakes (Khal), which is exclusively meant for cattle consumption. Therefore, it is crystal clear that even the nature of goods and purpose of consumption are also not similar and instead, they are entirely different and for different consumption purposes. 13. Yet another ground raised by the applicants is that the respondent is not using the trade mark continuously for a period of five years. The said allegation is falsified by production of voluminous documents in the form of invoices and sales figures right from the year 1998 which shows that the respondents are using the impugned trade mark for more than a decade. 14. In view of the above said reasons, we have no hesitation to hold that the applicants have miserably failed to prove their case under section 47 of the Act. Accordingly, the application is hereby dismissed as devoid of merits. No order as to costs.
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