JUDGMENT
M.C. Gupta, DRTM.
1. A label consisting of the word COCORAJ with a, device of coconut tree was sought for registration under application No. 549767 dated 25r4-.1991 in class 29 by the above named Applicants. The applicants claimed user since October, 1988. Eventually the application was accepted and duly advertised subject to association of applicants earlier registration No. 328202 in class 29 vide Trade Marks Journal No. 1141 dated 16-12-1996 at page No. 1310.
2. On 29-3-1996 a Notice of Opposition by the above given Opponents was lodged on Form TM-5 objecting to the registration of the aforesaid impugned mark of the applicants on the following grounds:
3. That in about the year 1948 the Opponents adopted the trade mark PARACHUTE in respect of edible oils and are using the same extensively with a distinctive colour scheme, layout and other artistic features and thus the same has come to be identified and associated exclusively with them. That the applicants have adopted the impugned mark dishonestly with an intention of passing off their goods, as with the same colour scheme, layout and artistic features of the opponents label, and therefore, the registration of the impugned mark is prohibited for registration in terms of Section 11(a) as the same is likely to cause deception and confusion during the course of trade.
4. That the Opponents are also the Regd. Proprietor of similar trade marks as per details in given in para 13 of the Notice of opposition. The Opponents took objections under Sections 9, 11, 12(1) and 18(1) of the Act and also prayed for the exercise of discretion adverse to the applicants under Section 18(4) of the Act.
5. In the counter-statement filed on 16-10-1997 the applicants denied the various averments made in the notice of opposition and stated that the applicants are using the trade mark COCORAJ consisting of various labels with different colour schemes since prior to the year 1968 and are the Regd. Proprietors of the word COCORAJ under No. 328202 and others as per the details given in para 4 of the counter-statement. The applicants further stated that the present opposition is filed just on account of jealousy and business rivalry and that the two rival label trade marks cannot be held to be deceptively similar under any circumstances. Rest of the counter-statement contains mere denials of the opponents averments. The opponents relied upon the notice of opposition as their evidence under Rule 53. Similarly the applicants also did not file any evidence in support of their application and eventually the matter was set down for hearing.
6. The Opponents filed an Interlocutory Petition dated 7-2-2001 seeking stay of these proceedings on the ground that an infringement-cum-passing off suit is filed by them under Suit No. 3447/1990 in the Hon’ble High Court of Bombay against the applicants and that “certain issues” are common to both these proceedings. The Opponents submitted that for the sake of convenience the present proceedings be stayed. The applicants in their comments stated that the Opponents are delaying the proceedings without any basis and that the suit is pending since the year 1990 whereas the Interlocutory Petition was filed only in February, 2001. The Interlocutory Petition of the Opponents was disallowed wide my order dated 16-4-2002. This order has not been appealed against by either of the parties, and therefore, the main matter was heard on 17-6-2002 in presence of Shri M.R. Nair, Advocate for the Opponents and Shri A. Kayser, Advocate for the Applicants.
7. Shri M.R. Nair, Ld. Advocate for the Opponents stated that the colour scheme and the entire get up of the rival labels are practically identical and the applicants have adopted the same with a view to trade upon and benefit from goodwill and reputation already enjoyed by the Opponents. He stated that the Opponents are already Regd. Proprietor of PARACHUTE lable under No. 363235 and others and that they are using the same extensively. Shri Nair, Ld. Advocate for the Opponents challenged the registration of the applicants mark under Application No. 427211 and stated that in that application they are claiming user since the year 1968 whereas in the impugned application the user is claimed by them since the year 1988. Shri Nair more or less repeated the same argument as was advanced by him at the time of hearing of the Interlocutory Petition dated 7-2-2001. Shri Kayser Ld. Advocate of the Applicants vehemently refuted the submissions of Shri Nair and stated that the applicants are the Regd. Proprietors of the trade mark COCORAJ and the label under various numbers as per details given in para 4 of the counter-statement. He stated that the impugned label is being used since 1988 and that each lable has its own slight variation, and therefore, there is a difference in claim of user for each one. He stated that the word PARACHUTE and the word COCORAJ cannot be held to be deceptively similar. He stated that the other features in the impugned mark viz., the device of a coconut tree and other descriptive feature have been disclaimed by the applicants and so also the Opponents in their registrations. He stated that remaining and the main and prominent feature in the rival labels are only the word COCORAJ and the word PARACHUTE of the opponents. He stated that under no circumstances the rival trade marks can be held to be deceptively similar within the meaning of Section 2(1)(d) of the Act. Shri Kayser, in this connection, referred to various case laws.
8. I have considered the submissions of both the parties carefully. It is absolutely correct that the word PARACHUTE and the word COCORAJ are wide apart. There is no similarity whatsoever between the two words. With regard to the rival label marks, it may be stated that the device of coconut tree is a common feature in this trade, and therefore, only the same is disclaimed. The applicants are the registered proprietors of the word COCORAJ and the labels under various registration numbers as per details given in para 4 of the counter-statement. The impugned application is being associated with their earlier registrations. This Tribunal fails to understand as to what is the objection of the Opponents to the registration of the impugned mark when the rival marks are not deceptively similar at all. Further since the Opponents have not filed any evidence in support of their use and reputation, then where is the question of any deception or confusion during the course of trade as alleged by them under these circumstances? The applicants are also the registered proprietors of the trade mark COCORAJ under various numbers, and therefore, have a bona fide proprietary right in the impugned label as claimed by them. This Tribunal do not find any reason to uphold any of the objections to registration of the impugned mark as raised by the Opponents, especially when they failed to substantiate the same in these proceedings and have not filed any evidence of their use and reputation.
9.In view of the above, Opposition No. BOM-51125 is disallowed with costs. Application No. 549767 shall proceed to registration. The Applicants are entitled to a cost of Rs. 130/- (Rupees One hundred thirty only) of these proceeding.