Nova Corporation Ltd. vs Neena Electrics Ltd.
2003 Latest Caselaw 995 Del

JUDGMENT

Pradeep Nandrajog, J.

1. The respondent applied for registration of the trade mark "NOVA" in respect of "television, tape recorder radio receiving set, transistors, car cassette players, cassette recorders and players radio transistor cum tape recorders" falling in Class-9. The application was registered as No. 444828. It was advertised before acceptance and in response to the same on 9th Augut, 1990, the petitioner gave the notice of opposition to the registration averring that the petitioner was the registered proprietors of the trade marks "NOVA" in respect of "radio receiving sets" registered in their favor vide registered marks under Nos. 211525 and 211526. By the impugned order, the Registrar of Trade Marks held in favor of the respondent herein and returned a finding that the petitioner had failed to substantiate their objections. In that, it was not proved that by prior user they had attained a reputation. The Registrar of Trade Marks, as per the evidence adduced by the respondents held that the respondents were honest concurrence users and in that view of the matter gave benefit of Sub-section (3) of Section 12 of the Trade and Merchandise Act to the respondent herein.

2. None has appeared for the petitioner to support the petition. Sh. Manmohan Singh, learned Counsel appearing for the respondent submits that the order sought to be impugned in the petition has to be sustained, inter alia, on the grounds:

 (i)     that the findings that the respondent is an honest concurrent user is a finding of fact and there is no averment that the said finding is based on no evidence and therefore in exercise of its appellate jurisdiction, this Court would not interfere with the impugned order;  
 

 (ii)    that the finding of the Registrar of Trade Marks that the petitioner herein was not acquired any reputation by continuous user is also a finding of fact which is based on evidence and it not being the case of the petitioner that the finding is based on no evidence, this Court would not interfere with the same;  
 

 (iii)  that as a matter of fact the petitioner was actually dealing in steel bars and had never used the mark "NOVA" for "radio receiving sets" and in fact had just purchased the rights in the marks from third parties in order to defeat the claim of the respondent.   
 

3. I find from the impugned order that the Registrar of Trade Marks has held that the evidence on record did not show that the petitioner were continuously using the mark 'NOVA", and therefore, there was no material on record to hold that the petitioner had acquired a reputation therein. On a perusal of the evidence led by the respondent, it was held that in any case, it is a case of honest concurrence user. On a further perusal of the evidence, the Registrar of Trade Marks has held that the petitioner was dealing mostly in steel bars as was evident from the evidence filed by the petitioner. In fact, evidence showed that prior to the year 1989, the petitioner had not used the said mark.

4. It is apparent from the record that the respondent had successfully proved that it was using the mark "NOVA" in respect of the description of goods with effect from 1st January, 1981. In this view of the matter, I am satisfied that the three findings, noted above, arrived at by the Registrar of Trade Marks are based on evidence and that the Registrar of Trade Marks has rightly exercised its jurisdiction while disallowing Opposition No. DEL 6855 filed by the petitioner and as a consequence thereof allowed the application for registration of the trade mark filed by the respondent. Accordingly, the petition is dismissed, however, since none appeared for the petitioner, there shall be no order as to costs.