Trademark registrations cannot be denied based on similarity when prior registrations exist, and the use of national symbols must be considered permissible if no objection is provided by relevant authorities.

JUDGMENT

Prathiba M. Singh, J. (Oral)

1. This hearing has been done through hybrid mode.

2. This is an appeal under Section 91 of the Trade Marks Act, 1999 (hereinafter `Act') challenging the order dated 28th May, 2019 passed by the Trade Marks Registry read along with statement of grounds dated 11th October, 2019. Vide the said order, the trademark application of the Appellant/Applicant (hereinafter `Applicant') has been rejected.

The details of the Applicant's trade mark application are as under:

Mark	Application No.	Application Date	Class	Applicant
	1787422	19th February, 2009	35	M/s Jindal Industries Pvt. Ltd.

3. The said mark has been rejected by the Trade Mark Registry under Sections 9 and 11 of the Act as also the Emblems and Name (Prevention of Improper Use) Act, 1950. The relevant portion of the impugned order reads as under:

"9(2)(d) - The trade mark;--Its use is prohibited under the Emblems and Name(Prevention of Improper Use)Act,1950 (12 of 1950)

11(1)(b) - Relative grounds for refusal of registration. The said trade Mark is refused for registration because of its similarity to an earlier trade mark and the identity or similarity of the goods or services covered by the trade mark there exists a likelihood of confusion on the part of the public, which includes the likelihood of association with the earlier trade mark."

4. It is the case of the Applicant that it has been using similar marks since 1961 and holds registration in respect of them under various classes including Classes 6, 17, 11. Ld. Counsel for the Applicant further relies upon the judgment of this Court in C.A.(COMM.IPD-TM) 99/2021 titled M/s Jindal Industries Pvt. Ltd. v. The Registrar of Trade Mark as also in C.A. (COMM.IPD-TM) 99/2021 titled M/s Jindal Industries Pvt. Ltd. v. The Registrar of Trade Mark to argue that the Emblems and Names (Prevention of Improper Use) Act, 1950 does not prevent the use of outline of the map of India as a trade mark.

5. Heard and perused the record. The order under challenge in the present appeal does not consider the fact that similar trademarks have already been registered by the Appellant in several Classes. The reasoning for rejecting the application in question in the Statement of Grounds of Decision under Rule 36(1) of the Trade Marks Rules, 2017 is as under:

"With reference to the above and request on Form TM- M dated 10/09/2019. It has been decided by the Registrar of Trade Marks to inform you that hearing in respect of above application was held on 18/04/2019 and the said application is refused on the following Grounds;

ADV. APOORVA, APPEARED, ARGUED, HEARD, CHECKED, IT APPEARED THAT, DECEPTIVELY SIMILAR REG. MARK WITH SAME SERVICES ARE ON RECORD, USER CLAIMED SINCE 1961 AND FILED USER OF GOODS AND NOT SERVICES ALONG WITH MARK APPLIED,MOREOVER USE OF THE MAP ALONG WITH MARK IS NOT INHERENTLY DISTINCTIVE ALSO NOT GAVE MONOPOLY RIGHT, BENEFIT OF PROVISO SEC. 9 AND SEC.12 ALSO NOT PROVIDED, HENCE REFUSED."

6. The order is completely silent on other registrations which have been granted in favour of the Applicant for identical/similar marks in other classes. Further the Trade Mark Registrar did not take into consideration the no objection given by the Survey of India in favour of the Applicant in respect of the mark in question.

7. This Court had the occasion to consider a similar matter in C.A.(COMM.IPD-TM) 99/2021 where the application was filed by this very Applicant for an identical mark as in the present matter in Class 17 which was rejected by the Trade Mark registry on identical grounds. The Court had observed therein as under:

"13. A perusal of the record sho