Prior adoption and user rights establish entitlement to trademark protection, and their absence undermines claims for rectification, regardless of phonetic similarity.

JUDGMENT

TEJAS KARIA, J

1. This is a Rectification Petition under Section 57 of the Trade Marks Act, 1999 (“Act”) for cancellation / removal / rectification of the registered Trade Mark, ‘PATANJALI GONYLE FLOOR CLEANER’/ ‘ ’ (“Impugned Mark”) under Registration No. 3094452 in Class 05 in the name of the Respondents from the Register of Trade Marks (“Register”).

FACTUALMATRIX

2. The Petitioner is a non-governmental organization which aims at the protection and promotion of the welfare of the indigenous cows in India. The Petitioner assists the gaushalas / gausadans to reach a level of sustainability where they can provide good lives to the animals with good management practices.

3. In the year 2013, the Petitioner, in its endeavor to make gaushalas self- sustainable, developed a floor cleaning product derived from cow urine (“Petitioner’s Goods”). The product was named as ‘GAUNYLE’ (“Petitioner’s Mark”) as it is a substitute to the standardly used phenyl, but is made from cow urine.

4. The Petitioner applied for, and obtained registration for the Petitioner’s Mark. The Petitioner’s Mark was applied under Trade Mark Application No. 3133397 for the goods falling under Class 05. The details of the registration of the Petitioner’s Mark is set out hereunder:

Mark Number Application User Class Goods Date claimed GAUNYLE 3133397 18.12.2015 12.12.2013 05 Biodegradable disinfectants (phenyl), Ayurvedic and medicinal preparations, Antiseptic

5. It came to the Petitioner’s attention from market sources that RespondentNo.1alongwithRespondentNo.2aremanufacturingandselling floor cleaners, also made of cow urine, under the Impugned Mark. The Petitioner issued a legal notice dated 14.01.2017 (“Legal Notice”) to the Respondents inter alia calling upon the Respondents to cease and desist from making any representations or claims by using the Impugned Mark in any form. The Petitioner had brought to the notice of the Respondent that the adoption sought to be made by the Respondent is identical to the Petitioner’s Mark and that the same is being done with a clear intention of trading upon the goodwill of the Petitioner.

6. The Respondents issued a reply dated 15.03.2017 (“Reply”) to the Legal Notice. In the Reply, the Respondents claimed to use the Impugned Mark since 2011 and that the Impugned Mark is phonetically / visually different fromthe Petitioner’s Mark.Further,the Respondents had filedTrade MarkApplications Nos. 3094452 and 3037168 for the Impugned Mark under Classes 05 and 03, respectively. Additionally, the Petitioner discovered that the Impugned Mark had proceeded for registration on 29.12.2016.

7. Being aggrieved by the registration of the Impugned Mark, the Petitioner has filed the present Rectification Petition for cancellation / rectification / removal of the Impugned Mark from the Register.

SUBMISSIONSONBEHALFOFTHEPETITIONER:

8. The learned Counsel for the Petitioner submitted that:

8.1. The Impugned Mark deserves to be rectified by removing the same fromthe Register onthegrounds thatthe same was applied