( 1 ) THE present appeal is directed against the order dated 7. 11. 1997 passed by the Assistant Registrar of Trade Marks, New Delhi dismissing the opposition filed by the petitioner herein and accepting the application for registration in class 24 with the condition that the respondents 1 to 3 would agree to the disclaimer of the word dhariwal appearing in the mark applied for.

( 2 ) ON 15. 3. 1990 the respondents 1 to 3 trading as M/s. Dhariwal Woollen Textile Mills applied for registration of trade mark dwm-DHAWAL vide application No. 526317m respect of blankets, shawls, lohis and other woollen piece goods included in class 24. The respondents claimed the user of the said mark applied for since 15. 9. 1987. The aforesaid application was ordered to be advertised before acceptance and was accordingly advertised in the trade mark journal on 1. 8. 1994. On publication of the advertisement the petitioner gave notice of its intention to oppose the registration of the trade mark advertised on the ground of it being violative of the Trade and Merchandise Marks Act, 1958 (hereinafter called the Act ). The respondents contested the aforesaid notice of opposition by filing their counter statement supporting the registration of the mark applied for. The evidence was accepted by the Assistant Registrar of Trade Marks through affidavits and thereafter he proceeded to hear the parties and by the impugned order the opposition of the petitioner was rejected and the application for registration was accepted subject to the aforesaid conditions.

( 3 ) BEING aggrieved by the aforesaid order the present appeal has been preferred under Section 109 of the Act. Learned Counsel appearing for the petitioner submitted that the petitioner is a Government Company dealing in manufacture of woollen goods i. e. Khaskari Lohis, shawls, lohis, blankets, suiting etc. under the emblem and device of LAMB over the word DHARIWAL which is written in a characteristic manner. According to the petitioner the said trademark and device are well known and recognised by the members of the trade and public. It was also the contention of the petitioner that the said trade mark dhariwal alongwith the device was adopted in the year 1920 and is being used as such in respect of which the petitioner also obtained registration as on 1. 12. 1955 and advertised of the trade mark journals. It was also stated by the petitioner that the said trade mark dhariwal and device of LAMB is also the house-mark of the petitioner.

( 4 ) MR. Manmohan Singh appearing for the petitioner submitted that the trade mark applied for by the respondents for dwm-DHARIWAL is deceptively similar to the trade mark dhariwal alongwith the device of LAMB of the petitioner registered on 1. 12. 1955 and the same is likely to cause confusion and deception if the same is allowed to be used by the respondents and thus the impugned order accepting the registration is against the provisions of the Trade and Merchandise Marks Act. It was also submitted by him that the respondents are not using the letter mark DWM at the time of user and that they are only using the trade mark DHARIWAL in the same script as well as the device of LAMB in the identical fashion and therefore the dishonest intention is apparent on the face of the record. In support of the said contention reliance was also sought to be placed by the Counsel appearing for the petitioner on the conduct of respondent No. 1 who was admittedly the employee of the petitioner from 19. 6. 1946 to 26. 11. 1985, the date on which he in-law and other relations of respondent No. 1. He further contended was dismissed from service, the respondents No. 2 and 3 being the daughter- that the respondents 1 to 3 are using the trade mark DHARIWAL as well as the device of LAMB in identical script and fashion as the petitioner is using and therefore, are guilty of making un-warranted efforts of capitalising on the goodwill and reputation of the petitio