Application filed for registration of identical trademark “TRAIN” in respect of rice
New plea before appellate court-In the first instance, the question arises why the veracity of these documents relied on by the opponents is being raised at the appellate stage when the same was available and not challenged by the appellant/applicant in the proceedings before the Assistant Registrar-There is nothing in the record to show that this issue has been agitated before the Assistant Registrar, it being the Court of first instance, which could have gone into great details whether the documents relied on by the opponents are forged and fabricated. Merely because some bills of the opponents are not rice specific, by itself it is not fatal to the opponent’s/ respondent’s case. No matter how much he may canvas, the fact of the matter is the opponents are already the Registered Proprietors of another identical Trademark under No.405933 in Class 30 in respect of rice since 1983-It is well settled law that if the applicant, at the time of making an application, had knowledge that the mark as applied for is similar to another mark in the Register and that has already been used by another trader in relation to similar goods, then the claim of proprietorship by him is false and fraudulent. In this case, the applicant/appellant has failed to make out case for registration of the impugned mark-The Assistant Registrar had good reason to believe that the subsequent adoption and use and its application for trademark registration for the same mark in respect of the same goods should not be allowed.
We find that not all the bills of the opponents are questionable to conclude that original trademark registration was itself obtained by fraud. In any event, we cannot embrace the argument that because of the original registration of the respondent’s Trade Mark was purportedly obtained by wrongful means; the appellant should be allowed to proceed to trademark registration in cochin. There is no doubt in our mind that the adoption and use of the same mark for the same good will lead to total confusion in the Market as affirmed by this decision. “Mohd. Akram Ansari Vs Chief Election Officers & Others” in Supreme Court 2008 (1) R.C.R. (Civil 566 in civil Appeal no. 4981 of 2006) where in para 14 it was observed as follows :
In this connection we would like to say that there is a presumption in law that a judge deals with all the points which have been pressed before him, It often happens that in a petition or appeal several points are taken in the memorandum of the petition or appeal, but at the time of arguments only some of these points are pressed. Naturally a judge will deal only with the points which are pressed before him in the arguments and it will be presumed that the appellant gave up the other points; otherwise he would have dealt with them also. If a point is not mentioned in the judgment of a Court, the presumption is that that point was never pressed before the learned Judge and it was given up. However, that is a rebuttable presumption. In case the petitioner contends that he had pressed that point also (which has not been dealt with in the impugned judgment), it is open to him to file an application before the same learned Judge (or Bench) that the other points were in fact pressed, but were not dealt with in the impugned judgment, it is open to the concerned Court to pass appropriate orders, including an order of review. However, it is not ordinarily open to the party to file an appeal and seek to argue a point which even if taken in the petition or memorandum of trademark filed before the Court below. The party who has this grievance must approach the same Court which passed the judgment, and urge that the other points were pressed but not dealt with”. This is precisely the point that has been troubling us and the respondent has cited the right authority to prove his point.
Obviously, the opponent/respondent is in the rice trade and has been alert enough to oppose the impugned mark at the first available opportunity. We agree with the applicant that many of the bill/invoices furnished by the opponent are prima facie suspicious. But how does that improve the prospect of securing the applicant the identical trademark registration of the impugned mark? This is not a case where the validity of the opponent’s Registered Trademark is in issue. This Board is meant for imparting justice between the parties. One, who comes to us, must come with a clean hand. From the reading of the documents and pleadings, we believe that the applicant/appellant are making an all out eleventh hour efforts to leapfrog into the register through the appellate route having failed to make the cut before the Assistant Registrar.
Adopting an identical Mark for same goods in the same class is a high risk crime and even the best case scenario so ably put forward by the Learned Counsel for the applicant/appellant at the hearing cannot save either the applicant or his application. Who can deny that there will be total confusion in the market if the applicant Trademark is allowed to co-exist on the register? This Board will do its best to discourage illicit commerce by use of such tainted Mark. Making concession under Section 12, which is essentially meant for a public purpose in respect of the impugned Mark, is totally unwarranted giving rise to public misgivings and would erode the legislative intent for which it was engrafted in the Act.
On a totality of the case, we have no reasons to interfere with the findings of the Assistant Registrar. Once we come to this conclusion, all other incidental grounds vigorously raised both by the appellant (dubious supporting documents) and the respondent including (complicated ownership history of the appellant’s identical Trademark which passed through several hands) need not be gone into at length and in finer details to sort out unresolved conundrums and acknowledged disconnect as these do not materially alter the factual position of the case.