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2013 (9) TMI 99 - MADRAS HIGH COURTExclusive Right over Trademark - Whether the respondent can claim any exclusive right over the individual element 'IMPERIAL' when a trade mark consists of several matters – Held that:- By adding a house mark 'RHIZOME' as prefix and a different colour name as suffix, the petitioner had totally made their product as distinguishable - the contention that the trade mark of the writ petitioner was deceptively similar to the trade mark cannot be accepted - no one can claim exclusive right for the word 'IMPERIAL' since the word 'IMPERIAL' was only a common word - the petitioner had also registered yet another trade mark 'IMPERIAL RED' - Therefore, the word 'IMPERIAL' had to be looked into along with the colour to decide the issue, 'whether the trade mark of the petitioner could be registered or not' - The anti-dissection rule which is prevalent both in US as well as in India is really based upon customer behavior - the trade mark of the petitioner looked as a whole, namely, 'RHIZOME'S IMPERIAL GOLD', with the trade mark of the 4th petitioner 'IMPERIAL BLUE without making any dissection or splitting up the word into several words would not cause any confusion in the minds of the purchasers. Application of Provisions of Section 11 - Whether the respondent Board had committed any error in allowing the application filed by the respondent by applying the provisions of section 11 of the Trade Marks Act - Held that:- The order passed by the 2nd respondent was not legally sustainable - the order passed by the 2nd respondent Board, allowing the rectification application for removal of the petitioner's trade mark from the Register of Trade Marks by applying the principle which was available to the trade mark holder before registering the trade mark, suffers from illegality - The grounds embodied under sections 9 and 11 were available to the persons only at the time when they raise objection for registering the trade mark - The said principles cannot be applied for rectification of the registration, particularly considering the factum that the Liquor India Private Limited had withdrawn their objections before the Commissioner on 14.03.2006 and allowed the petitioner to carry on the business under the name of RHIZOME IMPERIAL GOLD – Order set aside – Petition allowed.
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