K. Mohan Ram, J.

This appeal has been filed under Section 109 of the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as the Act) against the order of the learned Single Judge dated 25.09.1998 in T.M.A. No. 3 of 1989 and Cross Objections. The said appeal has been filed against the order dated 12.05.1989 passed by the learned Deputy Registrar of Trade Marks allowing the Rectification application No.MAS-300 and directing the removal of the Registered Trade Mark No.273203 of the appellant from the Register.

2. The rectification application relates to rectification of Registered Trade Mark No.273203 in Class 33 consisting of the words PETER SCOT per se. The said trade mark was registered with effect from 3rd July 1971 by Khoday Distilleries Private Limited, the appellant herein, on the basis of user claimed since May 1968. On 21.04.1986, rectification application was filed by the respondents 1 & 2 seeking expunction of the impugned registered trade mark on the ground:

(1) That the registration of impugned trade mark offends Section 9 of the Act on the ground that the mark was neither distinctive nor capable of distinguishing the registered proprietors goods;

(2) That the impugned registration also contravenes Section 11 as the impugned registered trade mark contains the word SCOT which is likely to deceive or cause confusion in as much as the word SCOT indicates Scottish origin for the liquors;

(3) That the mark is also disentailed to protection in a Court of law

(4) That in all the foregoing premises, the mark shall be removed from the register.

3. The registered proprietors namely the appellants herein filed a counter statement denying all the material averments in the application for rectification and ultimately prayed for the exercise of Registrars discretion to allow the trade mark to remain on the register.

4. The respondents 1 & 2 filed an affidavit of IAN Glen Barclay in-house solicitor of the first respondent as evidence in support of the application for rectification and also 20 third party affidavits have been filed as evidence. But the appellant herein did not file any evidence in support of registration.

5. The Deputy Registrar of trade Marks, the third respondent herein framed the following five issues;

.(1) Whether the Applicants are "persons aggrieved" under Section 56;

.(2) Whether the Application for rectification is not maintainable due to any mis-joinder of Applicants;

.(3) Whether the impugned mark was not distinctive of the goods of the registered proprietors at the commencement of the rectification proceedings;

(4)Whether the impugned registration contravenes Section 11 at the commencement of rectification proceedings; and

(5) Whether the mark is liable to be rectified and if so, in what manner.

6. On a careful consideration of the materials available on record, the third respondent held that the first respondent association cannot be regarded as a "rival in trade" to the registered proprietors and consequently held that the first respondent cannot be considered to be a person aggrieved and accordingly accepted the contentions of the appellant that the first respondent has no locus standi to maintain the application under Section 56 of the Act. But at the same time, upheld the locus standi of the second respondent. As far as the second issue is concerned, the third respondent held that the mis-joinder of applicants is not fatal. As far as the third issue is concerned, the third respondent held that the respondents 1 & 2 herein have practically admitted that the impugned mark is in use during the last several years and therefore it cannot be held that the impugned mark is not distinctive of the goods of the registered proprietors at the commencement of the proceedings and accordingly, decided the issue against the respondents 1 & 2 and in favour of the appellant herein. So far as the issue No.4 is concerned, the third respondent mainly relying upon the failure on the part of t