The distinctiveness acquired through extensive use and global presence of a trademark should be considered in the registration process.

JUDGMENT

Jyoti Singh, J. - Present appeal has been filed by the Appellant under Section 91 of the Trade Marks Act, 1999 (hereinafter referred to as the 'Act') seeking setting aside of the impugned order dated 31.07.2018 passed by the learned Senior Examiner of Trade Marks in application No. 2628985, refusing to accept and advertise the trademark 'SENSE FLO' for goods in Class 10, as well as for a direction to accept and advertise the same.

2. Appellant had filed an application for registration of the trademark 'SENSE FLO' on 18.11.2013 and on 11.02.2015, the Examination Report was issued with the following objections:-

'The trade marks-which are devoid of any distinctive character, that is to say, not capable of distinguishing the goods or services of one person from those of another person; which consist exclusively of marks or indications which may serve in trade to designate the kind, quality, quantity, intended purpose, values, geographical origin or the time of production of the goods or rendering of the service or other characteristics of the goods or service;

The Trade Mark application is open to objection on relative grounds of refusal under Section 11 of the Act because the same/similar trade mark(s) is/are already on record of the register for the same or similar goods/services. The detail of same/similar trade marks is enclosed herewith Save as provided in Sec. 12, a trade mark shall not be registered if because of-its identity with an earlier trade mark and similarity of goods or services covered by; the trade mark; or its similarity to an earlier trade mark and the identity or similarity of the goods or services covered by the trade mark,'

3. On receiving the Examination Report, Appellant responded to the objections on 21.04.2015, stating that the mark 'SENSE FLO' was unique and had become distinctive on account of Appellant's reputation, global presence and user of the mark and also sought to differentiate 'SENSE FLO' from other allegedly conflicting trademarks.

4. Show-cause notice dated 16.05.2018 was issued by the Trade Marks Office informing the Appellant of the hearing scheduled on 27.06.2018. It is the case of the Appellant that despite the notice period being short, the Authorized Agent of the Appellant appeared before the Respondent and made submissions regarding the distinctiveness, uniqueness, exclusivity, reputation and goodwill of Appellant's trademark 'SENSE FLO'. However, despite detailed submissions, learned Senior Examiner, vide the impugned order, wrongly recorded the absence of the Authorized Agent of the Appellant and also rejected the application on merits on the following grounds:-

'NONE APPEARED, OPPORTUNITY GIVEN AND NO REQUEST FOR ADJOURNMENT FILED AND REPLY IS ALSO NOT SATISFACTORY TO EXAMINATION REPORT, MARK IS NOT DISTINCTIVE BUT DESCRIPTIVE IN NATURE OF OBJ. U/S 9 SUSTAIN, MOREOVER IT IS PROPOSED TO BE USED SO BENEFIT OF PROVISO OF SEC.9 IS NOT PROVIDED, HENCE REFUSED.

*9 - Absolute grounds for refusal of registration.

*9(1)(a) - The trade mark is devoid of any distinctive character, that is to say, not capable of Distinguishing the goods or services of one person from those of another person:

*9(1)(b) - The Trade Mark consist exclusively of marks or indications which serve in trade to designate the kind, quality, quantity, intended purpose, values, geographical origin or the time of production of the goods or rendering of the service or other characteristics of the goods and services.

*11(1)(a) - Relative grounds for refusal of registration.- The said trade Mark is refused for registration because of its identity with an earlier trade mark and similarity of goods or services covered by the trade mark;'

5. Learned counsel appearing on behalf of the Appellant submits that the application was rejected by the learned Senior Examiner of Trade Marks erroneously under Sections 9 and 11 of the Act. As far as objection under Section 9 of the Act is concerned, it is urged that Proviso to Section 9(1) of th