The impugned mark was ineligible for registration due to similarity with an earlier trade mark, as per Section 11(1)(b) of the Trade Marks Act.

ORDER (Oral)

1. This is a petition under Section 57^1[57. Power to cancel or vary registration and to rectify the register. -

(1) On application made in the prescribed manner to the High Court or to the Registrar by any person aggrieved, the Registrar or the High Court, as the case may be, may make such order as it may think fit for cancelling or varying the registration of a trade mark on the ground of any contravention, or failure to observe a condition entered on the register in relation thereto.

(2) Any person aggrieved by the absence or omission from the register of any entry, or by any entry made in the register without sufficient cause, or by any entry wrongly remaining on the register, or by any error or defect in any entry in the register, may apply in the prescribed manner to the High Court or to the Registrar, and the Registrar or the High Court, as the case may be, may make such order for making, expunging or varying the entry as it may think fit.^] of the Trade Marks Act, 1999, seeking rectification of the Register of Trade Marks by removal, therefrom, of the device mark [IMG], registered in favour of Respondent 1 vide Certificate No. 1494360 dated 18th March 2017, with effect from 17th May 2016. The status page of the said mark, as available on the website of the Registrar of Trade Marks, indicates that Respondent 1 was claiming user since 1st April 2007. The impugned mark, as it presently stands, is valid till 17th May 2026.

2. The petitioner is the holder of a registration for the [IMG] device mark, vide certificate no. 530145 dated 11th May 2006, with effect from 23rd July 2001.

3. The petitioner's mark is registered in Class 30 in respect of Monosodium Glutamate (MSG), whereas Respondent 1's mark is registered in respect of "Monosodium Glutamate Citric Acid, Mitta Soda and Chemical Substances for Preserving Foodstuffs" in Class 1.

4. Ms. Rhea Chawla, learned Counsel for the petitioner, points out, at the outset, that the registration of the impugned mark in favour of Respondent 1 is in the wrong class, as the category of goods in respect of which the mark stands registered in favour of Respondent 1 falls within Class 30 of the NICE Classification, and not Class 1. Classes 1 and 30 of the Nice Classification, it may be noted, read thus:

"Class 1 - Chemicals used in industry, science and photography, as well as in agriculture, horticulture and forestry; unprocessed artificial resins, unprocessed plastics; manures; fire extinguishing compositions; tempering and soldering preparations; chemical substances for preserving foodstuffs; tanning substances; adhesives used in industry.

Class 30 - Coffee, tea, cocoa; sugar, rice, tapioca, sago, artificial coffee; flour and preparations made from cereals; bread, pastry and confectionery, ices; honey, treacle; yeast, baking-powder; salt, mustard; vinegar, sauces (condiments); spices; ice."

5. Section 57 of the Trade Marks Act empowers the Court to make, expunge or vary the entry relating to the registration of the impugned trade mark in the register of trade marks. As such, even if the impugned mark has been registered in favour of Respondent 1 under a wrong class, it would not make out a case for expunction of the registration; at the highest, the Court would appropriately have to direct the Registrar to reconsider the application for registration of the impugned mark under the appropriate class.

6. However, Ms Chawla has advanced a second submission which goes to vitiate the impugned registration in toto.

7. Ms. Chawla submits that the impugned [IMG] mark of Respondent 1 is deceptively similar to the [IMG] mark of the petitioner. The respondent's mark is "Golden Queen" whereas the petitioner's mark is "Golden Crown". Both the marks are used on packages with nearly identical trade dresses. Ms. Chawla further submits that the textual material on the two packs is also nearly the same. In fact, she submits that the text in Mandarin, on the face of the two packs, is identic