Madras High Court
Nutri Feeds And Farms Private ... vs The Registrar Of Trade Marks on 20 September, 2023
2023:MHC:4271
CMA (TM) No.5 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 20.09.2023
CORAM:
THE HONOURABLE MR.JUSTICE SENTHILKUMAR
RAMAMOORTHY
CMA (TM) No.5 of 2023
Nutri Feeds and Farms Private Limited,
No.904, 9th Floor, Brigade Rubix,
HMT Main Road,
Bengaluru – 560 013
Represented by its authorised signatory,
Mr.Mundaje Chicka Rajendra Shetty. ...Appellant
-vs-
The Registrar of Trade Marks,
Intellectual Property Building,
G.S.T. Road, Guindy,
Chennai – 600 032. ...Respondent
PRAYER: Civil Miscellaneous Appeal (Trademarks) filed under Section 91
of the Trade Marks Act, 1999, praying to set aside the impugned order dated
01.07.2022 and consequently direct the respondent to register the Trade
Mark Application No.5028674.
For Appellant : Mr.Keerthikiran Murali
For Respondent : Mr.C.Samivel
Senior Panel Counsel
1/6
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CMA (TM) No.5 of 2023
JUDGMENT
The appellant assails an order dated 01.07.2022 by which Application
No.5028674 for registration of the following device mark was refused:
2. The appellant applied for registration of the device mark extracted
above on 02.07.2021 on a "proposed to be used" basis. The said application
was under Class 35 in relation to advertising, business management,
organization and administration, and office functions. By examination
report dated 14.07.2021, the Registrar of Trade Marks raised objections
under Section 9(1) of the Trade Marks Act, 1999 (the Trade Marks Act) on
the ground that the mark is non-distinctive. By reply dated 14.08.2021, the
appellant asserted that the device mark is distinct and that a stylized font
was used in the colours red and black with the image of a rooster artistically
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CMA (TM) No.5 of 2023
presented beside the text and the corporate name of the appellant set out
beneath the words "The Better Chicken". Consequently, the appellant
asserted that the mark, when viewed as a whole, is distinctive and capable
of being registered as a trade mark. After a hearing on 18.05.2022, by order
dated 01.07.2022, the application was rejected under Section 9(1)(b) of the
Trade Marks Act on the ground that the mark may serve in trade to
designate the kind, intended purpose, or other characteristics of the service.
3. Learned counsel for the appellant invited my attention to the device
mark and pointed out that the identical device mark was previously
registered with effect from 02.07.2021 under Class 31 which relates to
agricultural, aquacultural, horticultural and forestry products; live animals;
food stuffs; beverages for animals and the like. When registration was
granted for the identical device mark in relation to a class of goods which
are more closely related to the business of the appellant, learned counsel
submitted that the refusal of the present application is completely
unjustified.
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CMA (TM) No.5 of 2023
4. In response to these contentions, learned counsel for the respondent
submitted that Section 9 of the Trade Marks Act contains absolute grounds
of refusal and that the appellant's mark being descriptive of the kind,
intended purpose or characteristics of the service is incapable of
distinguishing the services of the appellant from those of others. Therefore,
he submitted that the impugned order does not warrant interference.
5. On examining the mark, it is clear that it is a device mark
consisting of the image of a rooster in red colour. Beside the image of the
rooster, the words "The Better Chicken" are written in a stylized font in a
combination of red and black color. Beneath the words "The Better
Chicken" is written "By Nutri Feeds & Farms Pvt. Ltd", thereby indicating
the corporate name of the appellant. When viewed as a whole, the device
mark is distinctive and does not fall within the prohibition under Section 9
of the Trade Marks Act.
6. It should also be noticed that the appellant previously obtained a
certificate of registration in Class 31 for the identical device mark. The
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CMA (TM) No.5 of 2023
impugned order merely draws reference to Section 9(1)(b) of the Trade
Marks Act as the reason for refusal. For reasons set out above, the
impugned order is unsustainable and is, hereby, set aside. The application
shall proceed to registration subject to the incorporation of the limitation
that the appellant shall not claim exclusive use of the words "The Better
Chicken", whether used as individual words or in combination. It is made
clear, however, that this order will not be binding on opponents, if any.
7. The appeal is allowed on the above terms without any order as to
costs.
20.09.2023
Index:Yes
Speaking Order
Neutral Citation:Yes
hvk
https://www.mhc.tn.gov.in/judis
CMA (TM) No.5 of 2023
SENTHILKUMAR RAMAMOORTHY,J.
hvk
To
The Registrar of Trade Marks,
Intellectual Property Building,
G.S.T. Road, Guindy,
Chennai – 600 032.
CMA (TM) No.5 of 2023
20.09.2023
https://www.mhc.tn.gov.in/judis
