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2013 DIGILAW 1155 (KAR)

T. Varadaraj Pai v. Kiran Kumar

2013-09-25

B.V.NAGARATHNA, D.H.WAGHELA

body2013
ORDER : 1. The order of the Intellectual Property Appellate Board (hereinafter referred to as the 'Appellate Board') dated 4.7.2013 (Annexure-P) is assailed in this Writ Petition. Brief facts of the case are that, the petitioner herein, claiming to be manufacturing malt and other products under the trade name "Sri Raghavendra Malt", had sought permanent Registration Certificate from the District Industry Center in the year 1989. The petitioner claims that he had been using and selling malt and other products under the trade name "Sri Raghavendra Malt" without any interruption. He has filed an application for registration of the trade mark, which is pending. When the matter stood thus, the respondent had issued a legal notice and has also filed a suit in O.S. No. 1/2007, which is pending 3 adjudication before the District Court, Udupi. The petitioner had made an application for removal of trade mark "Raghavendra Malt", registered under No. 1266408 in Class 31 in the name of the respondent. The Appellate Board, after considering the evidence of the parties and also the evidence of two other witnesses, has declined to cancel the registered trade mark and has dismissed the application. Being aggrieved by the said order, this Writ Petition has been preferred. 2. We have heard the learned counsel for the petitioner and perused the material on record. 3. The main contention urged on behalf of the petitioner is that, the respondent has deposed in his affidavit that he has been using the trade mark only since the year 1994-95 and not since the year 1981 and, therefore, the Appellate Board was not right in concluding that the respondent was a prior user. Learned counsel for the petitioner drew our attention to the depositions in support of the respondent and contended that there is a contradiction in the said 4 depositions and that the Appellate Board ought not to have relied on the said depositions when the same were not made part of the record in O.S. No. 1/2007 by the respondent. He, therefore, contended that the order of the Appellate Board requires interference. 4. He, therefore, contended that the order of the Appellate Board requires interference. 4. Having heard the learned counsel for the petitioner and on a perusal of the material on record, we find that, in the affidavit of the respondent, a copy of which is filed as Annexure-F, it has been categorically stated that the trade mark "Raghavendra Malt" has been in continuous use since the year 1981 and it has acquired a very reputed market. This averment made by the respondent has been supported by the oral evidence of two other witnesses viz., Devadas Pai, who is the owner of a printing press of long standing, and Smt. Mamta Vaishi, who was working as Panchayat Development Officer. Both the witnesses have supported the contention of the respondent that he has been in business since the year 1981 and that he has been the user of the trade mark "Raghavendra Malt" and that it is his 5 brand name since the year 1981. On appreciation of the said evidence, the Appellate Board has concluded that the registration of the trade mark in favour of the respondent would not call for any rectification. We have perused the order of the Appellate Board in the light of the evidence on record and we do not think that the reasons assigned by the Appellate Board or its appreciation of the evidence would call for any interference in this Writ Petition. The Writ Petition is accordingly dismissed.