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IN THE HIGH COURT OF DELHI AT NEW DELHI
C. HARI SHANKAR, J.
LITE BITE TRAVEL FOODS PRIVATE LIMITED – Appellant
Versus
THE REGISTRAR OF TRADE MARKS – Respondent
C.A. (COMM.IPD-TM) No. 4 of 2021
Decided On : 18-01-2023
Trade Marks Act, 1999 – Section 11 – Appellant is aggrieved by order, passed by learned Deputy Registrar of Trade Marks (“the learned Deputy Registrar”) whereby application of appellant for registration of device mark “IMAGE” has been rejected – Held, Appellant would be entitled to an opportunity of personal hearing before a decision is taken – In order to expedite matters, appellant is directed to present itself before concerned officer – Officer concerned is directed to consider application as expeditiously as possible and take a fresh decision thereon, uninfluenced by impugned order, within a period of four weeks therefrom, and to communicate said decision to the appellant immediately thereupon – Without casting any aspersion on learned Deputy Registrar, who passed the impugned order, and keeping in mind principle that justice should not only be done but must be seen to be done, as enunciated by Supreme Court (CBI/SPE), MANU learned Registrar is requested to assign task of adjudication to an officer other than officer who has passed impugned order – It is made clear that this direction is not intended to cast any aspersion on the learned Deputy Registrar who passed impugned order and is only intended to assuage any apprehension, in minds of appellant, that officer has already pre-determined the issue – Appeal allowed.
ORDER :
1. The appellant is aggrieved by the order dated 7th January 2021, passed by the learned Deputy Registrar of Trade Marks (“the learned Deputy Registrar”) whereby the application of the appellant for registration of the device mark “IMAGE” has been rejected.
2. The impugned order reads thus:
ORDER
Above application has been filed for registration of the trademark Oasis Lounge By Lite Bite Travel Foods on 28.08.2018 which was examined on 29.09.2018 and examination report was communicated to the applicant at his address for service. A reply to the office objections had been filed on behalf of the applicant but the same was not found satisfactory and the application was set down for hearing and eventually hearing took place before me on 09.11.2020.
Adv. Manish Dhir Attorney appeared before me and made his/her submissions. I have heard arguments and gone through the records.
Office objection u/sec. 11 (1) raised against the applied mark.
Ld. Counsel submits mark as a whole different. Applicant is using the mark.
Heard the Ld. Counsel and perused the record.
Leading/Dominant feature of the applied mark is OASIS found common and similar to TM Nos. 2045465 and 3131397. Services also similar. No explanation regarding adoption. Mark filed as proposed to be used. Evidence of use subsequent to date of application. Can't be considered. Given, marks are remembered by broad expression, to my mind there is likelihood of confusion between applied mark and the said cited conflicting marks. Objection sustained. Application refused.
After perusal of all the documents on record and submission made by the applicant/ authorised agent it is concluded that applied mark is not registrable because of the reason stated as above. Hence application no 3928838 cannot be accepted and refused accordingly.
Dated: 07 January 2021.
(SACHIN SHARMA)
DEPUTY REGISTRAR OF TRADE MARKS
(Authorized under 3(2) of the Act).”
3. The applicant applied for registration of the device mark on 28th August 2018. The applicant sought registration of the said mark in respect of services provided in restaurants, self-service restaurants, services for providing food and drink, bar services, snakc-bars and cafes. Registration was sought on a “proposed to be used” basis, as a Service Provider.
4. Consequent on examination, the Examiner in the office of the Regsitrar of Trade Marks, vide his First Examination Report (FER), dated 29th September 2018, opined that the application of the appellant was “open to objection on relative grounds of refusal under Section 11 of the Trade Marks Act” as “same/similar trade marks is/are already on record of the register for the same or similar goods/services.”
5. The report purported to enclose details of the earlier existing trademarks, on the basis of which the Examiner had opined that the application of the appellant merited rejection.
6. The details of the earlier registered marks, constituting the basis of the objections raised by the Examiner, as enclosed with the FER, may be reproduced thus:
| LOCATION: SECTION: EXM REPORT: EXM007 | WORD MARK SEARCH REPORT APPLICATION NUMBER: 3928838 Class: --- TRADEMARK: Oasis Lounge By Lite Bite Travel Foods | USER: STK PAGE: 1 DATE: 17.09.2018 | ||||
| APPL NO | CLASS | CONFLICTING MARK | JOURNAL No | PROPRIETOR NAME | PROPRIETOR ADDRESS | STATUS/TM IMAGE |
| 2045465 | 43 | OASIS | 1660 | CAPSULATION SERVICES PVT. LTD. | CAPSULATION PREMISES, DEONAR, SION-TROMBAY ROAD, OPP. TATA SOCIAL INSTITUTE, MUMBAI-400088 | Registered |
| APPLICATION DATE 27.10.2010 GOODS/SERVICE CATERING SERVICES, PROVIDING OF FOODS AND DRINKS AND RESTAURANT SERVICES | ||||||
| 3131397 | 43 | OASIS |
| GOYAL FASHIONS PVT. LTD. | GOYAL HOUSE 24, AJMER ROAD, JAIPUR, RAJASTHAN, I | |
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