Concurrent use of a trademark does not necessitate continuous, uninterrupted use to satisfy legal standards.

1. By this appeal under S.109 of the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as 'the Act'), the appellants, M/s. Wattan Singh and Sons, change an order of the Assistant Registrar of Trade Marks, Delhi, accepting the application of the respondents M/s. Bakhtawar Engineering Works, for the registration of their rival mark under S.12 (3) of the Act. The appeal has been filed in the following circumstances.

2. According to the appellants, they are engaged in the manufacture and merchandise of agricultural machinery, chaff cutter blades and their components and have been carrying on this business under the trade mark "DO CHIRI" with the device of two birds since 1932 through their predecessor - in - interest and since 1937 by themselves. The mark was registered in 1949. The application of the predecessor - in - interest of the appellants for registration was then opposed on the ground that the then opponents had been using a similar mark based on the flying bird device. In the course of the proceedings, Jawala Singh, who was then a partner of the firm, and had applied for registration on behalf of the firm, filed an affidavit in support of the claim for registration. In para 1 of the affidavit Jawala Singh stated that several firms engaged in the manufacture of chaff cutting machines had been using trade marks consisting of flying birds without any objection even though all these marks based on the bird device had considerable resemblance with each other. He had then furnished names of 20 firms who had been applying such marks in relation to the aforesaid manufacture which included M/s. Bakhtawar Engineering Works, the respondents herein. In 1968, M/s. Bakhtawar Engineering Works respondents herein, sought registration of a mark in relation to chaff cutting machine which consisted of a label containing the device of two birds on a stem with the words "TWO KABUTAR MARKA" on the allegation that this mark had been in use by the respondents since 1950. Opposition to the mark was entered on behalf of the appellants in 1969 and the registration of the rival mark was opposed, inter alia, on the ground that the appellants had been using their mark since the year 1932, had acquired a vested right in it since then on account of extensive use and publicity, that the registration of the mark of the respondents would be contrary to the provisions of S.12 (1) and 11 of the Act and their claim could not be justified with reference to S.12 (3) of the Act. In their rejoinder the respondents claimed that they had honestly adopted the mark and had been using it since 1950 and they were, therefore, entitled to the benefit of S.12 (3) of the Act. The parties filed affidavits and documents in support of the rival contentions. It appears that meanwhile the appellants prosecuted the respondents on a complaint based on a charge of infringement of their trade mark. The trial Court convicted the respondents, but the conviction was set aside by the High Court by the judgment which is reported as AIR 1974 Punj and Har 116 . On the motion of the respondents a copy of the judgment was allowed to be placed on the record of the proceedings by the Assistant Registrar. The affidavit of Jawala Singh was also allowed to be placed on record. The High Court had returned the finding that use by the respondents of the mark, sought to be registered, appeared to it to be both concurrent and honest.

3. By his order of September 1, 1975, sought to be appealed against, the Assistant Registrar of Trade Marks rejected the opposition of the appellants and directed that the mark be registered under S.12 (3) of the Act. In the course of the order the Assistant Registrar came to the conclusi