Anand rai company gojavas copy my rand angadia
Notice of opposition to application for registration of a trade mark or a collective mark or a certification mark.
(Sections 21 (1), 64, 66, 73)
In the matter of application no. 3458669 in the name of pigeon express private limited having its registered office at 49, rani jhansi road, opp. Jhandelwalan mandir, new delhi - 110055 to register the trademark aangadia on mobile (Device) in class -39.
And
In the matter of opposition filed thereto by nemane jewellers private limited (Opc), an existing company incorporated under the provisions of the companies act, 2013 having its registered office at nemane jewellers, bus stand road, patoda in, beed – 414204.
I. We nemane jewellers private limited (Opc), having its registered office at nemane jewellers, bus stand road, patoda in, beed - 414204, (Herein after referred to as “the opponents” which terms includes its predecessors in rights, interests and title and affiliate, subsidiary and license companies) do hereby give notice of our intention to oppose the registration of the above stated mark under application no. 3458669 dated 30.06.2016 in class 39 which was advertised in the trade marks journal no.1775-0 dated 12.12.2016.
Ii. The grounds of opposition are as under:
1. The opponent is rendering the services in the field of courier, postal and freight.
2. The opponent is the registered proprietor of the trademark angadia (Herein after refereed as said trademark). The details of the registration of the said trademark in the name of the opponent are given below.
Appl. No. Class trade mark journal no.
3298384 39 angadia 1775-0
5. The opponent is in use of the said trademark extensively, exclusively and uninterruptedly since its filing date of registration.
6. The opponent’s reserves its right to adduce any additional evidence in support of statement and submission made herein at the relevant stage of the opposition proceeding.
7. The present opposition is against the application for registration of the trademark aangadia on mobile being application no. 3458669 in class 39, advertised in trade mark journal no. 1784-0 dated 13.02.2017 and made available to on same day and whose status is advertised before acceptance, means it’s not fully accepted by registrar nor accepted and advertised. There is some hesitation and for the reason of that its status is advertised before acceptance.
8. The trade mark aangadia on mobile (Herein after referred to as the “impugned mark”) is deceptively similar to the opponents said trademark, in appearance and over all commercial impression such that it is likely to cause confusion, mistake, or deception among the consuming public.
9. Notwithstanding the opponent’s prior and superior proprietary rights in and to its said trademark, the applicants file the application for the highly deceptively similar impugned mark on 13.012017 in respect of logistics, transportation and courier services included in class 39. Being in the similar trade, the applicant must have been aware of the existence and high reputation and goodwill of the opponent’s said trademark at the time of adoption of its impugned mark. The servicescovers under the rival marks areidentical in nature. The use of the impugned marks by the applicant it also lightly to mislead the public that the applicant is in a way of other associated with the opponent. Thus, amalafide intention on part of applicant is writ large in that adoption of the impugned mark was actuated solely with a view to misappropriate upon opponents said trademark.
10. It is respected to submit that the impugned mark is structurally, visually and phonetically close and hence deceptively similar to the opponents said trademark. Therefore, registration of applicants mark would affect purity of the trade mark register; given the identical nature of the subject services in class 39. The applicant has made absolutely no attempt to distinguish their services under the impugned mark from those of the opponents said trademark. The applicants said impugned mark is therefore inherently incapable of distinguishing their services from those of the opponents and its registration may therefore be refused on this ground under section 9 (1) (A) of the act.
11. Due to the noticeable similarity of the impugned mark with the opponents said trademark, is likely to create an unmistakable impression in the minds of consumers that services of the applicant belong to or are somehow associated with the opponents which is absolutely false. The adoption of a deceptively similar impugned mark by the applicant is deliberate and with complete knowledge of the opponents right in the said trademark. Therefore applicant’s use of the impugned mark is nothing but to en-cash upon the reputation of the opponent’s and is therefore dishonest.
In view of the above, it is submitted that the subject application for the impugned mark should be disallowed as it would be in contravention the provision of the sec 9 (2) (A) of the act.
It is pertinent to note that the visual, structural and phonetically similarity between the rival marks are bound to create confusions in the minds of trade and public. Accordingly, the impugned mark is barred from registration under the provisions of section 11 (1) (B) of the act.
12 the registration of the impugned mark is likely to be contrary to the provisions of sec 11 (3) (A) of the act as the use of the impugned mark is liable to be prevented in a court of law under the law of passing off and unfair trade competition.
13 the opponent’s, in its capacity as the owner of said trademark does not consent to the registration of the impugned mark and the applicant is therefore not entitled to rely upon section 11 (4) of the act.
14 the opponent states that the it is submitted that no use is claimed by the applicant and any use subsequently claimed is denied and dishonest since it seeks to misappropriate opponents said trade mark. It is further submitted that under the circumstances no amount o[censored]se can render the adoption of the impugned mark to be honest since such uses void ab initio.
In view of the above, the applicant cannot claim any benefit under the provisions of section 12 of the act which presupposes honesty in adoption.
It is submitted that filing of theimpugned application for the deceptively similar mark by the applicant is not a matter of coincidence, but extremely calculated and blatantly dishonest act initiated with bad faith whereby the applicant sought to profit upon the goodwill enjoyed by the opponent in its said trademark. Therefore, the applicant cannot be the proprietor of the impugned mark within the meaning of section 18 (1) of the act. Nevertheless, the applicant is called upon to render justification as to how it comes to adopt the impugned mark.
15. The opponent is the register proprietor of the said trademarks under registration number 3298384 in class - 39, the opponent has acquired exclusive right to the use of its trademark as per section 28 (1) of the act and any use or registration of an identical and deceptively similar trademark such as impugned trademark will be a violation of the exclusive rights acquired by the applicant by virtue of its registration. Hence, these entitles to the refusal of the applicants impugned trademark which is deceptively similar to the opponents said trademark.
16. The opponent is the registered proprietor of the said trademark, hence any use of the impugned trademark, which is deceptively similar to the opponents prior registered trademark for the goods which falls under the same class will be associated with the opponent’s mark and would therefore amount to infringement of the opponents registered trademark as per section 29 of the act. Hence, the application is liable to be refused.
17. The registration of the impugned mark would be contrary to the public interest.in fact, refusal of the same would serve to curve the dishonest commercial practice or deliberately adopting prior, reputed, and well known trade marks or parts thereof with a view to right on the hard earned reputation and goodwill of those who have worked hard to popularize the same.in view of the grounds and reasons set out above and in order to maintain the purity of the register and in the interest of general public, the applicant’s mistake fully submit that it is a find and proper case for the exercise of the registrar’s decisions in favor of the opponent by denying registration of the impugned mark applied by the applicant.
18. Thus, we submit that the registration of the impugned mark would be contrary to the provisions of section 9 (1) (A), 9 (2) (A), 11 (1) (B), 11 (3) (A), 11 (4), 11 (10), 12, 18 (1). 28 (1) and 29 of the trade marks act, 1999 and the hon’ble tribunal ought to refuse registration of the impugned mark in exercise of its discretion under section 18 (4) of the act.
19. We crave leave to add, alter or amend the above grounds of opposition at any time during the instant opposition proceedings as per the provisions of section 21 (7) of the act.
20.in the circumstances stated above it is prayed that:-
• the impugned mark in class 5 under application no.3458669 be refused registration.
Gojavas Courier customer support has been notified about the posted complaint.
