Madras High Court
Bovian Pharma Pvt. Ltd vs The Registrar Of Trade Marks on 21 November, 2024
Author: Abdul Quddhose
Bench: Abdul Quddhose
CMA (TM) No.11 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 21.11.2024
CORAM
THE HON'BLE MR. JUSTICE ABDUL QUDDHOSE
CMA (TM) No.11 of 2024
Bovian Pharma Pvt. Ltd.,
represented by its Director Vatsal Patel .. Appellant
(cause title accepted vide order dated
11.06.2024 in C.M.P. No.11216 of 2024
in C.M.A. (TM) SR.128928 of 2023)
-vs-
The Registrar of Trade Marks,
Patent Office Intellectual Property Building,
G.S.T.Road, Guindy,
Chennai - 600 032,
Office of Trade Marks Registry. .. Respondent
Prayer: This Civil Miscellaneous Appeal filed under Section 91 of the Trade
Marks Act, 1999 read with Rule 7 of Madras High Court IPD Rules, 2022 to
set aside the order passed by the respondent in Application No.3533333 in
order dated 05.07.2023 and direct the respondent to publish the said
application in the Trade Mark Journal within the prescribed time fixed by
this Court.
For appellant : Mr.P.C.N.Raghupathy
For respondent : Mr.A.R.Sakthivel,
SPLGSC
1/6
https://www.mhc.tn.gov.in/judis
CMA (TM) No.11 of 2024
JUDGMENT
This appeal has been filed, challenging the impugned order dated
05.07.2023 passed by the respondent, refusing to register the appellant's
Trade Mark 'BOOSTMIN' under Class 5.
2.As seen from the impugned order, the reasons for refusal are as
follows:
'Since the appellant's mark 'BOOSTMIN' is identical to
similar marks, which are under consideration for registration,
the appellant's mark cannot be registered as per the provisions
of Section 11 of the Trade Marks Act, 1999.'
3.Learned counsel for the appellant filed an additional typed set of
papers before this Court and he drew the attention of this Court to the
identical marks relied upon by the respondent, while refusing to register the
appellant's Trade Mark for registration. He would submit that in respect of
the first mark, viz. 'BOOSTIN', the trade mark registration has not been
renewed and therefore, the respondent should not have any objection in
registering the appellant's Trade mark. He would also submit that in respect
https://www.mhc.tn.gov.in/judis
of the second cited mark 'BOOSTWIN SYRUP' is concerned, an Opposition
Petition has been filed opposing its registration and the same is pending
consideration by the respondent and therefore, there cannot be any bar for
the respondent to permit the appellant to publish its Trade Mark
'BOOSTMIN' in the Trade Marks Journal and receive oppositions, if any in
respect of the appellant's mark 'BOOSTMIN'.
4.Admittedly, the Opposition Petition filed in respect of the second
cited mark namely, 'BOOSTWIN SYRUP' is concerned, the same is still
pending on the file of the respondent and no final orders have been passed
in the said Opposition Petition by the respondent. It is also an admitted fact
that the first cited mark i.e. 'BOOSTIN' is concerned, the trade mark
registration obtained for the same, has got expired and it has not been
renewed. The same is confirmed in the impugned order. The appellant's
Trade Mark is registered under Class 5. The appellant is manufacturing
Feed Supplement for animals and their products are being sold under the
Trade Mark 'BOOSTMIN'.
5.Learned counsel for the appellant would submit that apart from the
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evidence placed on record before the respondent, the appellant is having
further evidence to prove that the appellant's Trade Mark 'BOOSTMIN' is
not identical or deceptively similar to any of the cited marks as reflected in
the impugned order.
6.Since the first cited mark i.e. 'BOOSTIN' has not been renewed and
its registration has got expired and in respect of the second cited mark i.e.
'BOOSTWIN SYRUP', there is an Opposition Petition pending, this Court is
of the considered view that no prejudice would be caused to the respondent
if the impugned order is quashed and Trade Mark Application of the
appellant is considered afresh by the respondent, on merits and in
accordance with law, after affording an opportunity to the appellant to
produce additional evidence in support of the appellant's case that they are
entitled for trade mark registration in respect of their Trade Mark
'BOOSTMIN' under Class 5.
7.For the foregoing reasons, the impugned order dated 05.07.2023,
passed by the respondent is hereby quashed and the matter is remanded back
to the respondent for fresh consideration of the appellant's Trade Mark
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Application in A.No.3533333, on merits and in accordance with law, after
permitting the appellant to produce additional evidence in support of their
claim for trade mark registration in respect of their Trade Mark
'BOOSTMIN' under Class 5. The respondent is directed to pass final orders
within a period of six months from the date of receipt of a copy of this
order.
8.With the above observation and direction, this appeal stands
disposed of. No costs.
21.11.2024
vga
Index : Yes/No
Speaking/Non Speaking Order
Neutral Citation Case : Yes/No
To
The Registrar of Trade Marks,
Patent Office Intellectual Property Building,
G.S.T.Road, Guindy,
Chennai - 600 032,
Office of Trade Marks Registry.
https://www.mhc.tn.gov.in/judis
ABDUL QUDDHOSE,J.
vga
21.11.2024
https://www.mhc.tn.gov.in/judis
