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