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2010 (11) TMI 1065 - HC - Indian Laws

Issues involved:
The judgment involves a challenge to the order passed by the Intellectual Property Appellate Board dismissing an appeal against the rejection of a trademark application for the mark "Cobra" in Class 9 under the Trade and Merchandise Marks Act, 1958.

Details of the Judgment:

1. Trademark Application Rejection:
The Petitioner's application for the trademark "Cobra" in Class 9 was opposed by Respondent No.1, who claimed ownership of the mark based on prior registration and use. The Deputy Registrar rejected the application citing lack of distinctiveness, non-use, and potential confusion with the existing registered mark of Respondent No.1. The triple identity test was found to be satisfied, leading to the refusal of registration.

2. Evidence of Prior Use:
The Petitioner claimed prior use of the mark since 1978 but failed to provide sufficient evidence to support this claim. The Deputy Registrar and the IPAB both found that the Petitioner did not establish the required user since 1978, based on the evidence presented, which included sales statistics and invoices without clear association with the mark "Cobra."

3. Concurrent User Defense:
The Petitioner argued for the defense of concurrent user of the mark and alleged that Respondent No.1's lack of action indicated acquiescence. However, the Court upheld the decision that the grant of registration to the Petitioner would cause confusion and deception due to the identical mark being used for similar goods in the same trade channel.

4. Final Decision:
The Court upheld the IPAB's decision to dismiss the Petitioner's appeal, stating that no grounds were found to interfere with the order. The petition was ultimately dismissed, affirming the rejection of the trademark application for "Cobra" in Class 9.

 

 

 

 

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