2010 (11) TMI 1065

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....9 for registration of the trade mark „Cobra‟. 2. The Petitioner filed the aforementioned application in respect of voltage stabilizer and parts and fittings thereof included in Class 9 of the Trade and Merchandise Marks Act, 1958 („TM Act, 1958‟). The Petitioner‟s application dated 19th November 1987 was advertised in the trade marks journal dated 1st February 1992. 3. In response to the aforementioned application Cobra Cables Pvt. Ltd., Respondent No.1, herein filed a notice of opposition on 16th March 1992. The case of Respondent No. 1 was that they were engaged in the business of manufacturing electrical apparatus and instruments, electric cables and electric conductors under the trade mark „Cobr....

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....rk „Cobra‟ in favour of the Petitioner. Apart from holding that the Petitioner had not produced any affidavit of user since 1978, the Deputy Registrar held that the mark „Cobra‟ was not distinctive of the goods. Further, because of non-use of the mark, it was not registrable under Section 12(3) of the TM Act, 1958. It was also held that the goods of the Petitioner and Respondent No.1 were of same description falling in Class 9. The Deputy Registrar held that with the mark of Respondent No. 1 being identical and being registered in the forum, acceptance of the application of the Petitioner for the same mark would cause confusion and, therefore, could not be allowed. It was held that triple identity test, i.e., the mar....

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....lant had sold the Voltage Stabilizers under the brand name COBRA. Some of the printed Bills/Invoices bear the name of the appellant Jain Electronics. In those Cash/Credit memos, the monogram of Cobra along with the word COBRA is printed. What is significance attached to the monogram of the cobra along with the words is not clear. In the description of goods sold by the appellant, it is simple mentioned „Automatic Voltage Stabilizer‟ without any reference to the trade mark. In such circumstances, it is very difficult for us to accept the plea of the appellant that they used the impugned trade mark in relation to the Voltage Stabilizers. Unless the trade mark with the description of goods or the goods identified by the trade mark ....

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.... pointing out that the user had to be in relation to the goods and not merely the invoices. 9. On the evidence produced by the Petitioner the concurrent finding of the Deputy Registrar as well as the IPAB is that the user since 1978 of the mark in relation to goods produced and sold by the Petitioner has not been established. This Court is not persuaded to come to a different conclusion. 10. Extensive case laws were relied upon by the learned counsel for the Petitioner to urge that the Petitioner could avail of defence of concurrent user of the mark even if not a prior user. It was also submitted that Respondent No.1 not having sought any infringement action against the Petitioner must be held to have acquiesced in the use of the mark....