The central legal point established in the judgment is the requirement for the Registrar to consider evidence and submissions, as well as the status of cited marks and the dissimilarity of goods and services under allegedly conflicting marks, in determining the likelihood of confusion under Section 11(1) of the Trade Marks Act, 1999.

JUDGMENT

Jyoti Singh, J. (Oral)

1. Present appeal has been preferred under Section 91 of the Trade Marks Act, 1999 (hereinafter referred to as the `Act') seeking setting aside of the order dated 21.07.2020, passed by the Respondent as well as for a direction to the Registrar to proceed with registration of the trademark `ENTREPRENEUR' under TM application No. 3233928.

2. The brief and relevant facts necessary for the disposal of the present appeal, as culled out from the averments in the appeal, are that Appellant is a company that publishes the renowned `ENTREPRENEUR' magazine, with its headquarters in USA. The magazine, first published in the year 1977, publishes 8 issues annually and is published under license, internationally in countries such as Hungary, India, Mexico, Philippines, Russia, South Africa, etc.

3. For nearly 40 years, the magazine has been a definitive guide to all the diverse challenges of business ownership and is available both in print, online and as a mobile application. Appellant offers its website www.entrepreneur.com in many geographical editions, such as India, USA, Europe, South Africa etc.

4. In India, the magazine was first published in September, 2009. Appellant uses the mark `ENTREPRENEUR' with its variations and has secured registrations internationally for the said mark in jurisdictions, such as United States of America, Canada, Mexico, etc. The mark `ENTREPRENEUR' is registered in Class 16 in India in respect of "paper goods and printed matter, namely, magazines, books and published reports pertaining to business opportunities" under Application No. 1035820, dating back to 10.08.2001. The earliest registration obtained in respect of the mark internationally, goes back to 23.06.1983, in Canada in Class 16 in respect of "paper and printed goods".

5. It is the case of the Appellant that in India, Appellant filed an application in Form TM-52 under No. 3233928, dated 13.04.2016, for registration of the trademark `ENTREPRENEUR' in classes 09, 38 and 41 in respect of various pre-recorded audio and audio-visual programs concerning strategies etc. as mentioned in para 2 (v) of the appeal on `proposed to be used basis'.

6. Registrar of Trade Marks scrutinized the Application No. 3233928 and issued an Examination Report dated 15.10.2016, raising the following objections:

"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 trademarks is enclosed herewith.

The objection is raised under Section 11(1) of the Trade Marks Act, 1999, as the mark is identical with or similar to earlier marks in respect of identical or similar description of goods or services and because of such identity or similarity there exists a likelihood of confusion on the part of the public"

7. Appellant filed a request on Form TM-M dated 17.04.2017 seeking extension of time in filing reply to the Examination Report and finally on 16.05.2017, the Appellant filed its reply, responding to the objections raised in the Examination Report and to ensure that the mark `ENTREPRENEUR' is accepted and proceeds for advertisement in the Trade Marks Journal. Appellant also filed Evidence Affidavit dated 11.10.2017, in support of use of the subject Trade Mark, along with a Letter of Consent dated 05.09.2017, issued by Mr. Gaurav Marya, Proprietor of one of the cited marks from the Examination Report, consenting to the use and registration of the Appellant's trademark `ENTREPRENEUR'.

8. On 16.07.2019, hearing was accorded to the Appellant by the Registrar of Trade Marks. Counsel appearing for the Appellant attended the hearing and advanced submissions for acceptance of the mark `ENTREPRENEUR' for advertisement, on the ground that one of the cited mark was `refused', the second stood abandoned and the third and fourth were applied for in respect of