Application No.,,Class Trade Mark,Status,"Renewal
Date
364263,24,ARVIND (HINDI),Registered,27.07.2008
718601,24,ARVIND SAMRAT,Registered,04.10.2006
718602,24,ARVIND STAR,Registered,10.03.2013
1181745,24,S. ARVIND,Registered,30.07.2012
1122490,25,ARVIND (L),Registered,
540241,24,"ARVIND DYEING&
BLEACHING MILLS PVT.
LTD.",Advertised,
1348313,24,ARVIND KING,Advertised,
1348314,24,ARVIND PRINCE,Advertised,
783046,24,ARVINDSUKH,Advertised,
1142090,24,ARVIND HIRA,Advertised,
1181744,24,S. ARVIND (HINDI,Advertised,
1348311,24,SACHHA ARVIND,Advertised,
1348312,24,SACHHA ARVIND,Advertised,
540242,24,ARVIND (L),Pending,
540243,24,ARVIND (L),Pending,
TRADE MARK/TRADE NAME,REGISTERED No.,,,
ARVIND SILK MILLS,209237,,,
ARVIND,363006,,,
ARVIND,364263,,,
ARVIND QUALITY,409845,,,
ARVIND,409846,,,
ARVIND MILLS,409847,,,
ARVIND MILLS LIMITED,4 0 9 8 4 9 & 409850,,,
ARVIND,665424,,,
ARVINDAMAR POLYSYNTHS PVT. LTD.,800552,,,
ARVIND TEXTILE MILLS,854906,,,
ARVIND (Device Crown),1109774,,,
S. ARVINDS (Label),1118843,,,
A R V I NDSOVERIGN MILLS (Picture of Radha and
Krishna)",1121952,,,
,`,,,
ARVIND (Device),1123044,,,
10. Learned Counsel for the respondent Shri A.H. Kane submitted that they are using this mark since 1993 and they have entered into a compromise,,,,
with the applicant. The applicants are not entitled to the mark ARVIND. They have been using the mark with prefix and suffix as mark. There are,,,,
various marks with word ARVIND stands on the Register. So they have no monopoly over the trade mark ARVIND. The counsel for the respondent,,,,
referred to unreported judgment of the (i) Bombay High Court in Miscellaneous Petition No. 13 of 1991 The Arvind Mills Limited v. Marda Textile,,,,
Corporation and Anr. wherein it was held that the Registrar would be in a position to exercise his discretion under Section 12(3) of the act. (ii) In,,,,
MANU/MH/0256/2003 Ayushakti Ayurved Pvt. Ltd. and Ors. v. Hindustan Lever Limited in which case it was held that since the words are Ayush,,,,
and Ayushakti are not similar and pronounced are not similar and injunction was declined by the court. (iii) In M A N U / S C/0192/1994 S.P.,,,,
Chengalvaraya Naidu v. Jagannath; MANU/DE/2088/2002 Kewal Krishan Kumar v. Rudi Roller Flour Mills (P) L,t.d it was held that a litigant, who",,,,
approaches the court is bound to produce all the documents executed by him which are relevant to the litigation, if he withholds a vital document in",,,,
order to gain, advantage on the other side then he would be guilty of playing fraud on the courts as well as on the opposite party.",,,,
11. After hearing submissions of both counsels and case laws referred before us and statement of cases and evidences produced before the Board,",,,,
we are of the opinion that the mark is used in same complex. So the address is not different and their business establishment in same place. The first,,,,
question is who are entitled to file rectification applications. An aggrieved person can file the application for rectification. In re: Powell's Trade Mark,,,,
1894 (11) RPC 4, the House of Lords has defined aggrieved person as:",,,,
although they were no doubt inserted to prevent officious interference by those who had no interest at all in the Register being correct, and to exclude",,,,
a mere common informer, it is undoubtedly of public interest that they should not be unduly limited, in as much as it is public mischief that there should",,,,
remain upon the Register a mark which ought not to be there, and by which many persons may be affected, who nevertheless would not be willing to",,,,
enter upon the risk and expenses of litigation.,,,,
Wherever it can be shown, as here that the applicant is in the same trade as the person who has registered the trade mark and wherever the trade",,,,
mark, if remaining on the Register would or might limit the legal rights of the applicant, so that by reason of the existence of the entry on the Register",,,,
he could not lawfully do what, which, but for the existence of the mark upon the Register, he could lawfully do, it appears to me he has a locus standi",,,,
to be heard as person aggrieved.,,,,
1 2 . A person is aggrieved person whose mark has substantially damaged by deception. In this case, the parties belong to same office, same complex,",,,,
same area, same trade in class 24 i.e. Dhotis, and the trade channel is also same. For the above reasons the petitioner/appellant is a person aggrieved.",,,,
1 3 . Secondly, the petitioner is the prior user of the trade mark since 1976 and registered in 1980 and using for class 24 particularly dhotis. The",,,,
respondent No. 1 is also using the mark for same class and same goods. In regards to correspondence by and between the rival parties, it is evident",,,,
from letter after issuing the legal notice to the registered proprietor to stop using the mark, the respondent No. 1 stopped use of the mark. The parties",,,,
between themselves reached a memo of compromise. In this compromise petition, admittedly as per the terms of compromise the respondent No. 1 is",,,,
not misutilise to use the trade mark. The respondent No. 1 has further paid to the applicant a sum of Rs. 100000/- for having used the goodwill of the,,,,
applicant company. It is evident form the compromise memo that the respondent No. 1 admitted that they are not using the ARVIND mark and the,,,,
respondent No. 1 has compromised the suit with the petitioner, in regard in the matter of suit for infringement filed before the competent court. It is",,,,
also agreed as per the compromise petition that respondent No. 1 will not misutilise the said brand name whatsoever, from and nature, if at all at any",,,,
point of time, if same is noticed the party No. 1 is at liberty to take proper legal action for said act without affecting the said compromise",,,,
understanding. In terms of compromise the respondent No. 1 has also given Rs. 1,00,000/- to the petitioner/applicant. The applicant also registered",,,,
owner of so many trade marks with the word ARVIND. The respondent No. 1 also is using the same trade mark from 1993 onwards. So both the,,,,
mark are appearing in the Register as same mark, same place, same area in the same trade and same locality of the same city. So the later",,,,
registration of respondent No. 1's mark is hit by Section 9 and 11 of the Act and the mark is wrongly remaining in the Register as per Section 57 of,,,,
the Act and liable to be expunged.,,,,
14. So in view of the above observations, we allow the application for rectification and direct the Registrar of Trade Marks to rectify the Register by",,,,
removing the trade mark registered under No. 1121952B in class 24 from the Register of Trade Marks. No order as to costs.,,,,
