TMI Blog2013 (1) TMI 557X X X X Extracts X X X X X X X X Extracts X X X X ..... or that the user of the brand name was entirely fortuitous and could not on a fair appraisal of the marks indicate any such connection, it would be entitled to the benefit of exemption. An assessee would also be entitled to the benefit of the exemption if the brand name belongs to the assessee himself although someone else may be equally entitled to such name. As per Sections 33 and 34 of Trade and Merchandise Marks Act, 1958 and Sections 33 to 35 of Trade Marks Act, 1999 that registration of trade mark by someone would not entitle to that person to interfere with or restrain the use of identical trade mark by any person or provided the said person or his predecessor has continuously used their trade mark from a date prior to the regist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty demand, interest and penalty as precondition of hearing their appeals. 3. Shri AR Madhav Rao, learned Counsel for the appellant appearing for the appellants has contended that the impugned order is not sustainable in law for the reason that the adjudicating authority has confirmed the duty demand and imposed penalty ignoring the fact that the trade mark was registered in the name of M/s. Mankoo International Industries in the year 2004 whereas the appellants have using this trade mark which belonged to their family since 1981 onwards. Learned Counsel submits that merely because M/s. Mankoo International Industries got trade mark registered in its own name, it would not divest the appellants of their right to use trade mark which they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, the benefit of SSI exemption under Notification No. 8/2003-C.E. is not available to the appellant. As such there is no reason for dispensing with condition of pre-deposit. 6. We have considered the rival contentions and perused the records. It is not disputed that the trade mark was being continuously used by the appellants since 1981 without any objection from any side. It is also not disputed that subsequently in the year 2004 M/s. Mankoo International Industries applied for registration for trade mark in their name and their request was accepted. The issue for determination is whether or not subsequent registration of trade mark in the name of M/s. Mankoo International Industries would divest the appellant of his right to use trade ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is Act shall entitle the proprietor or a registered user of a registered trade mark to interfere with or restrain the use by any person of a trade mark identical with or nearly resembling it in relation to goods or services in relation to which that person or a predecessor in title of his has continuously used that trade mark from a date prior - (a) to the use of the first-mentioned trade mark in relation to those goods or services by the proprietor or a predecessor in title of his; or (b) to the date of registration of the first-mentioned trade mark in respect of those goods or services in the name of proprietor or a predecessor-in-title of his; whichever is the earlier, and the Registrar shall not refuse (on such use being p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e denied the exemption merely because some other traders even in a remote area of the country had used the trade mark earlier is unfounded. The notification clearly indicates that the assessee will be debarred only if it uses on the goods in respect of which exemption is sought, the same/similar brand name with the intention of indicating a connection with the assessees goods and such other person or uses the name in such a manner that it would indicate such connection. Therefore, if the assessee is able to satisfy the assessing authorities that there was no such intention or that the user of the brand name was entirely fortuitous and could not on a fair appraisal of the marks indicate any such connection, it would be entitled to the benef ..... X X X X Extracts X X X X X X X X Extracts X X X X
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