( 1 ) THIS is an Appeal under Sec. 109 (2) of the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as the Act) preferred against the decision of the Assistant Registrar of Trade Marks, dated 15th May, 1991 accepting the application of the respondent No. 1 for registration of the trade mark ULCIBAN subject to the amendment under Sec. 18 (4) in the specification of goods so as to read Medicinal and Pharmaceutical preparations containing CIMETIDINE for the treatment of ulcer and to be sold on the written prescription only.

( 2 ) THE respondents No. 1 made an application No. 422819 dated 5th june, 1984 in Class 5 for registration of the trade mark ULCIBAN under sec. 18 (1) of the Act which was advertised in Trade Mark Journal No. 925 dated 16th December, 1989 at Page 678 in accordance with the provisions of Sec. 20 of the Act. The petitioner gave notice of opposition to the registration under Sec. 21 (1) of {he Act and respondent No. 1-Applicant sent its counter-claim in support of his application. Evidence as required by Sec. 21 (4) was submitted in the prescribed manner by the parties. The petitioners contention was that it is carrying on business as manu