Titan Industries Limited vs Registrar Of Trade Marks And Anr.
2007 (34) PTC 346 IPAB
Appellant filed an appeal challenging the order of the Assistant Registrar of Trade Marks, allowing Form TM-16 filed by the Respondent No. 2 for amendment of the date of user
Respondent No. 2 had filed an application on 1.9.1987 for registration of trade mark
‘Classic’ in respect of clocks, watches, timepieces and their parts. The said application was advertised before acceptance in Trade Mark Journal. The appellant herein had filed their notice of opposition to the said application. The main grounds in the opposition were as follows:
• Appellant is registered proprietors of the Trade Mark ‘Titan Classique’.
• The mark which is sought to the registered is confusing and deceptively similar to that of the appellants.
• Appellant was prior user of the mark
After the notice of opposition was filed, the Respondent No. 2 filed an application for amendment of date of use to 01.04.1986, which was allowed by the Registrar of Trade Marks. Aggrieved by the said order, the Appellant preferred an appeal before the High Court of Delhi which was transferred to Intellectual Property Appellate Board.
Appellant submitted that the Respondent No. 2 company was incorporated only in the year 1988 and to say that they had been using the trade mark since 10.4.1986 was false.
After a careful reading of Section 22 of the Trade Marks Act, 1999, the IPAB held as follows:
• A plain reading of Section 22 makes it clear that the Registrar of Trade Marks either before or after acceptance of the application for registration can permit the correction of any error or permit an amendment of the application.
• The amendment is allowed even after the publication which would not substantially alter the mark.
• Any amendment which will materially change the nature of the application should not be allowed. Prior user of a trade mark has more valid rights in a mark than the registered proprietor. The Respondent No. 2 is trying to take advantage of the proposition of law and has taken out this application under Form TM-16 at a belated stage. Amendment which is of such nature as to displace the other party cannot be allowed. Amendment of the date of user will definitely prejudice the rights of the Appellant, as the very nature of the application gets substantially changed.
• Application for amendment of the date of user which alters the nature of the application cannot be allowed.
The Appeal was allowed.