( 1 ) THIS CM (M) 69/77 takes exception to an order rejecting the application No. 2568/75 for registration of trade mark consisting of the words jay KAY in class 6 in respect of locks, rolled and cast building materials, bolts, nuts, screws, door hinges and nails for sale in the States of Uttar Pradesh, Mysore, Andhra Pradesh and Tamil Nadu.

( 2 ) ACCORDING to the petitioner Kedar Nath Gupta, the mark jay KAY is being used by him since 1965. It is claimed that since 1948, the applicant was working under the name and style J. K. Varshneyandco. He adopted the trade name jay KAY after his trading style jay Kay and Company for his manufactured locks by adopting the initials of his father and his own name for the customers and dealers in South India made clerical mistakes in the cheques in mis-spelling and word varshney in the year 1965. He claims to have following sale turnover of his goods under the trade mark jay KAY :

THE appellant moved this application tor registration, accordingly on 19. 5. 1969.

( 3 ) AFTER the trade name was advertised in the Trade Marks Journal No. 552 dated 1st June, 1972, JK Organization, an association registered under the Indian Trade unions Act, 1926 entered into opposition to the registration of the aforesaid trade mark on 1st September, 1972. The grounds of opposition are as under:

(I) The JK Organization controls more than 40 industrial, commercial or manufacturing concerns as members of their organization and have been using a trade mark consisting of the letters j. K. or the word jaykay within a toothed wheel or without the device of a hand holding a hammer and other device as a symbol trade mark of their Organization. The said trade marks have been registered in the names of several of their units under Nos. 4227, 85062, 85063, 212257, B73262, 213693 and 212256 in classes 24, 26, 27, 22, 24, 16 and 23 respectively. It is a house mark of JK Organization having a good deal of reputation.

(II) By reason of this use on a large number of goods by the various constituents units of the organization, the use and registration of the applicant s mark is likely to deceive or cause confusion under Section ll (a) and the applicant is not entitled to the benefit of Section 12 (3) of the Act. However, learned Counsel for the Objectors dropped the objection under Section 12 (1) of the Act.

( 4 ) THIS objection was contested by the applicant inter alia on the ground that the opponents have no locus standi since it is a non-trading organization. It is not entitled to maintain the opposition under Section 11 of the Act in the absence of reputation of the mark connected with them in the course of the trade which is said to be deceptively similar.

( 5 )

5. 1. The learned Assistant Registrar of the Trade Mark took the view that the applicants have got substantial interest in use of the mark by 40 constituent units and it is their duty to protect their mark from any unauthorised use outside the purview of these 40 constituent units. The JK Organisation could manufacture locks and sell in the market under the mark JK and people would be buying such locks as those manufactured by JK Organization member units within their industrial competence. Consequently, the mark is barred by the provisions of Section 1 (a) of the Act. He also held that in order to take advantage of the name ofjk, the applicant changed its name by deleting the word varshney and consequently, as provided under Section 11 (e) of the Act, the mark is not entitled to protection. The petitioners are not the proprietor of the trade mark and as such the claim of the applicants proprietary rights in the mark is not free from doubt within the meaning of Section 18 (1) of the Act.

5. 2. The learned Assistant Registrar also raised the objection under section 9 of his own to find out distinctiveness and in the absence of distinctiveness, refused to register in view of the provisions of Section 12 (3) of the Act and rejected the a