THE HON’BLE THE CHIEF JUSTICE ALOK ARADHE AND THE HON’BLE SHRI JUSTICE ANIL KUMAR JUKANTI WRIT PETITION Nos.2097, 2148 and 2248 of 2009 COMMON ORDER: (per the Hon’ble the Chief Justice Alok Aradhe)

Dr. Venkat Reddy Donthi Reddy, learned Senior Counsel representing RVR Associates for the petitioner.

Ms. Kalpana Ekbote, learned counsel for the respondent No.1.

2. In these writ petitions, petitioner has called in question the validity of the common order, dated 14.11.2008, passed in O.R.A.Nos.128/2007/TM/CH, 129/2007/TM/CH and 130/2007/TM/CH. In order to appreciate the grievance of the petitioner, relevant facts need mention, which are stated infra.

3. Respondent No.1 is engaged in the manufacture and sale of readymade garments under the name, style and trade mark, namely, “Show Off” since 01.04.1996.

According to respondent No.1, she has been using the aforesaid trade mark continuously and extensively since 01.04.1996 and the same has become a well known mark within the meaning of Section 2(1)(zg) of the Trade Marks Act, 1999 (hereinafter referred to as ‘the Act’). As per the case of respondent No.1, the petitioner was associated and was residing as a family member of respondent No.1 for several years, but later on separated from the family and started his own business in Hyderabad in the name and style of “Show Off”. The petitioner with an ulterior motive got the trade mark namely, “Show Off” registered on

16.09.1999.

4. Respondent No.1 thereupon filed applications under Sections 47, 57 and 125 of the Act inter alia on the ground that the petitioner was well aware of using of trade mark “Show Off” by respondent No.1 and was all along assisting respondent No.1 in her business and residing with the family members of respondent No.1. It was averred in the application that the petitioner has slavishly copied the trade mark of respondent No.1 with a dishonest intention and trading in the same goods. It was further averred that impugned registration will enable the petitioner to pass off his goods as that of respondent No.1’s well established goods. It is pleaded that respondent No.1 being the prior user of trade mark “Show Off”, the impugned registration is causing business loss as well as loss of goodwill and reputation and therefore, respondent No.1 is a person aggrieved. It is further pleaded that the impugned registration was made without any sufficient cause. Accordingly, respondent No.1 filed three applications, namely, O.R.A.Nos.128/2007/TM/ CH, 129/2007/TM/CH and 130/2007/TM/CH under Sections

47, 57 and 125 of the Act.

5. The petitioner filed counter statements in which inter alia it was pleaded that the petitioner is engaged in the business of dealing with and selling of textile piece goods, readymade garments, shoes and belts and leather goods since 16.09.1999 under the name and style of “M/s. Show Off His and Her Hi-Fashion Boutique”. It was averred that the petitioner is selling the goods under the distinctive trade mark of “Show Off” after being satisfied about non-existence of the word “Show Off” as a trade mark in relation to aforesaid goods and obtained registration of the trade mark “Show Off” which was written in an artistic manner by embossing its alphabet placement, appearance, size, shape, distinguishing feature and images. It was also averred that the application for registration was not opposed by anyone. The stand taken by respondent No.1 that she is the prior user of the trade mark “Show Off” was denied. It is averred in the counter statements that certificate dated 25.09.1996 issued under the Karnataka Professions, Trade, Livelihood and Employment Act, 1976 (hereinafter referred to as ‘the 1976 Act’) does not authorize respondent No.1 to manufacture or sell readymade garments as proprietor of the firm and the said certificate is contradictory to the date of use of trade mark claimed as 01.04.1996 by respondent No.1.

6. The Intellectual Property Appellate Board (hereinafter referred to as ‘the Board’) thereafter wi