The main legal point established is that the rejection of a trademark application based on lack of distinctiveness should be supported by sustainable facts and law, and the applicant should be given an opportunity to provide evidence of prior user as per the applicable trade marks rules.

JUDGEMENT (ORAL)

C. Hari Shankar, J.

1. This appeal challenges order dated 13th January 2020, whereby Application No. 3018041, submitted by the appellant for registration of the mark "Indirapuram Public School" in Class 41 has been rejected by the learned Senior Examiner in the office of the Trade Marks Registry. The reasoning in the impugned order of the learned Senior Examiner reads as under:

"In the examination report, mark was clearly lacks distinctiveness and falls within the purview of Absolute ground of refusal so envisaged under Section 9(1)(a) of the Trade Mars Act, 1999 which is reproduced as under:

9(1)(a) of the Trade Marks Act 19999 as the mark is a common surname/personal name/geographical name/ornamental or a non-distinctive geometrical figure and as such it is not capable of distinguishing the goods or services of one person from those of others.

Subsequently, a hearing was fixed in the matter on 19th March, 2019, eventually the Counsel for the applicant appeared on the said date for hearing and made his oral submissions in support the application. I have carefully perused the reply to examination report filed in the matter as well as electronically filed records and material available on the portal. I have also considered the oral submissions made at the time of hearing by the Ld. Counsel for the applicant in support of the registrability of the impugned mark.

Since the trade mark applied for registration is clearly lacks distinctiveness and descriptive to the nature and description of services, as applied for registration and the reply and documents placed on record are not sufficient to proceed the application further, hence, the mark cannot be allowed to proceed for registration, while considering the following.

Incapable of distinguishing the services of one person from the other;

The trademark "INDIRAPURAM PUBLIC SCHOOL" is a common and generic combination of two English words "INDIRAPURAM and PUBLIC SCHOOL". The word INIDRAPURAM is indicated geographical place and PUBLIC SCHOOL is indicated of intended purpose of services and it does not carry any distinctive character;

No one can acquire a monopoly or exclusive right;

It is pertinent and thus noteworthy that the impugned application has been filed claiming user of the mark since 15/04/2013, thus it was incumbent upon the applicant to prove said user through affidavit and documentary evidence, otherwise the application would be deemed to have been filed on the basis of wrong statement of use. Perusal of Examination report reply as well as documents filed on record, I have no hesitation to state that affidavit has been filed by the applicant which prove the user of the impugned mark since 15/04/2013, therefore Applicant has failed to comply with provision of Rule 25 of the Trade Marks Rules 2017 which reads as follows:

Rule 25 of Trade Marks Rules, 2017-

Statement of user in applications - (1) An application to register a trademark shall, unless the trademark is proposed to be used, contain a statement of the period during which, and the person by whom it has been used in respect of all the goods or services mentioned in the application.

(2) In case, the use of the trademark is claimed prior to the date of application, the applicant shall file an affidavit testifying to such use along with supporting documents.

In the light of the above said provision and the observations made by the Hon'ble Delhi High Court in the judgments namely Vivek Kochher & Anr v M/s Kyk Corporation Ltd & Anr. Reported as PTC 2017 (72) page 556 and Suresh Kumar Jain Vs. Union of India reported as PTC 2012(49) page 287, whereby it was held by the Hon'ble High Court that if the a mark is filed/registered on the basis of wrong statement of use, then the same cannot be registered or remain on the Register. Such mark therefore ought not to be put on the Register which is essential for a Hearing Officer for the purposes of maintaining the purity of Register being acting on behalf of Registrar of T