LAW FOR ALL

The trade mark in question is GOPAL Chhap and the device of Lord Krishna and Cow. ( label/mark).= whether other traders are likely without improper motive to desire to use the mark in connection with their own goods. The correct test now is whether the mark itself (abscent use) distinguishes respondent’s goods from the applicant. If so, it has a distinctive character. For the forgoing reasons the impugned mark qualifies for registration. Hence, in our view the objection raised under section 9 is not well founded.- the competing products ‘snuff’ and ‘chewing tobacco’ are not a substitute of each other. Both are addictive by its nature but ‘snuff’ have less negative health consequences. They relate to completely two different markets and is not a substitute for each other. Thus the objection raised under Section 11 also fails.- impugned trademark cannot co-exist in the register. It has been in use for over four decades in the market and had made sale for over Rs.63 lacs in 2007-08. No concrete instance of confusion have in fact been proved. After four decades would it be just and necessary to throw out a mark from the register merely on the strength of great name and fame of applicant’s mark on the purported allegation that the applicant have willfully copied their mark? - questioning the ownership of the respondent’s mark under Section18(1). The aforesaid analysis adequately goes to show that no serious allegation of mala fide adoption has been made out. The fact remains that the applicant are still not in the business of ‘snuff’ trade as per record. It will be unethical to oust a small time bona fide trade mark owner dealing in unrelated goods albeit for identical marks over long period. In the instant case applicant’s might is of no avail as the respondent have every right to the use and continued registration of their mark. Trade marks protection under the statute is not meant to conquer all rivals. Each has a place under the sun, other things being equal. The plea under Section 18(1) consequently fails. 11. In the result, ORA/157/2009/TM/AMD is dismissed. The applicant are directed to pay a sum of Rs. 5,000/- to the respondent as costs of these proceedings.