Registration validity sustained if distinctiveness established over time despite claims of descriptiveness.

1. This petition has been filed for rectification of registered trade mark No. 221462 registered in the year 1964 in favour of respondent 1 and the proceedings are instituted under S.56(1) of the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as 'the Act').

2. The registered mark consists of a composite letter with three features - a flower design, the numeral 96 and the word 'Majmua'. The register sets out the disclaimer providing that the registration of the mark shall give no right to the exclusive use of the device of flowers and the word 'Majmua' either separately or together.

2A. Respondent 1 is a partnership concern and carry on business as manufacturers and traders of Attars and perfumes. Respondent 1 are carrying on business in Attars and perfumes since the year 1945 and since the year 1956 have been using a composite mark containing the flower design and the expression 'Majmua' with numeral 96 as its leading distinctive feature for and in respect of perfumes manufactured by respondent 1 and sold on a large scale. The petitioners are also a partnership firm carrying on business as the manufacturers, dealers and exporters of Attars and perfumes. The petitioner firm consisted of three partners Ahmedali Akabarali, Gulam Abbas Ahmedali and Mansoorhussain Ahmedali and was constituted in the year 1952. Ahmedali Akabarali and Abdul Hssain Sadikali were working as partners of respondent No. 1 firm till the year 1952 and Ahmedali Akabarali retired from the partnership firm of respondent 1 in the year 1952 to start the petitioner - firm.

3. The annual sale figure of 'Majmua 96' perfume marketed by respondent No. 1 was Rs. 1,87,963/- in the year 1960 and went on gradually increasing to a huge figure of Rs. 16,28,551/- in the year 1974-75. Respondent 1 used to export their products on a large scale to the foreign countries. In the year 1975 respondent 1 learned that the petitioner firm had started using the label identical as that of respondent 1 for passing of perfumes manufactured by them. Respondent 1 received complaints from their foreign customers as well as customers from Bombay complaining that spurious perfumes were sold under the trade mark of respondent 1. Respondent 1 thereupon lodged complaint against petitioner - firm before the Export Promotion Council, but 'the petitioner firm failed to answer the inquiries made by the Council in response to the complaint of respondent 1. Respondent 1, ultimately filed complaint before the Metropolitan Magistrate about the violation of the trade mark. The Metropolitan Magistrate directed the police authorities to make inquiries and on June 23, 1975 the premises of the petitioners were raided and certain goods bearing the label which was identical as that of respondent 1, along with large number of labels and bottles, were seized. As the Metropolitan Magistrate commenced prosecution against petitioners under S.78 and S.79 of the Act, the petitioner instituted the present proceedings in this Court on Aug. 9, 1976 for rectification of the registered mark of respondent 1.

4. The petitioners claim that Registered Entry No. 221462 was wrongly made in the Register as the numeral 96 is not only common to the trade but indicative of the character and quality of the goods and is descriptive, and therefore, the registration was contrary to the provisions of the Rules and the Act and therefore invalid and illegal. The petitioners also claim that respondent 1 are not using the numeral 96 as a trade mark in relation to their goods, but are using the mark only to indicate the quality of the products. It is also claimed that respondent 1 faile