JUDGMENT :

[Amit Bansal, J.]

I.A. 6209/2022 (for exemption)

1. Subject to the appellant filing the original/certified/translated copies of any documents on which the appellant may seek to place reliance, within four weeks from today, exemption is granted for the present.

2. The application is disposed of.

C.A.(COMM.IPD-TM) 114/2022

3. The present appeal filed by the appellant under Section 91 of the Trade Marks Act, 1999 impugns the order dated 5th August, 2020 passed by the Senior Examiner of Trade Marks, Delhi whereby the trademark application of the applicant bearing no.3547956 for registration of the device mark ‘’ (hereinafter ‘subject trademark’) in Class 39 has been rejected on the ground that the subject trademark is laudatory and objectionable in terms of Section 9(1)(b) of the Trade Marks Act, 1999 (hereinafter referred to as ‘the Act’).

4. The details of the appellant’s trade mark application are as under:

5. Brief facts necessary for deciding the present appeal are as follows:

i. On 12th May, 2017, the appellant filed a trademark registration application for registration of the subject trademark in class 39.

ii. On 21st June, 2017, an Examination Report was sent by the Trademark Registry raising objection under Section 9(1)(b) of the Act.

iii. On 13th July, 2017, the appellant filed a reply to the aforesaid Examination Report giving detailed submissions stating that, inter alia, the subject trademark is a unique combination of words and is therefore, distinctive.

iv. It was further stated that exclusivity was being claimed on the subject trademark as a whole and no exclusive proprietorship was being claimed on any of the descriptive elements of the mark.

v. On 5th October, 2019, a hearing notice was sent to the appellant and the hearing took place on 4th December, 2019. On 29th November, 2019, the appellant filed additional documents for the hearing.

vi. Vide impugned order dated 5th August, 2020, the appellant’s application for registration of the subject trademark was rejected.

6. Counsel appearing on behalf of the appellant submits that the subject trademark cannot by any stretch of imagination be termed as laudatory. He places reliance on the judgment of the Division Bench in Mohd. Rafiq v. Modi Sugar Mills Ltd., 1971 SCC OnLine Del 190.

ANALYSIS AND FINDINGS

7. I have heard the counsels for the parties and perused the record.

8. I am in agreement with the submission of the appellant that there is nothing laudatory about the subject trademark. In any event, no reasons or justifications have been given in the impugned order as to how the aforesaid trademark amounts to being laudatory.

9. Counsel for the appellant has correctly placed reliance on the judgment in Mohd. Rafiq (supra), the relevant observations of which are set out below:

“We are unable to accede to the contention that the word “SUN” used in respect of the lanterns manufactured by the respondent is a laudatory term having reference to the character and quality of those lanterns. It is no doubt true that the rays of sun dispel darkness and lanterns too are used for dispelling darkness, it does not follow from that that the use of trade mark “SUN” for the lanterns has reference to the character and quality, of those lanterns. The reference to the character and quality, in our opinion, should be direct and plain and not remote and far-fetched. Likewise, the word, which is sought to be construed as laudatory, should have obvious significant of praise, and not one out of which an inference of praise has to be spelt out by a laboured process. Sun is the body which is the gravitational centre and source of light and heat to our planetary system. The element of praise is neither self evident in the word “SUN” nor can the said