LAKSON TOBACCO COMPANY, Ltd. Versus THE ASSISTANT REGISTRAR OF TRADE MARKS II

This is an appeal under section 76 of the Trade Mark Act, 1940, herein after referred to as the Act, read with Rules 25(3) and 84 of the Trade Marks Rules. 1963. hereinafter referred to as the Rules, against an order dated 9‑7‑1987 passed by the respondent in the appellant's Application No. 87805 in Class 34 filed by the appellants for registration of the trade mark "Red Band". The appellants being aggrieved by the above order have filed the present appeal.

2. None is present for the respondent though served.

3. 1 have heard the learned counsel for the appellants, Mr. Salim Ghulam Hussain, who has urged that there was no justification to decline the appellant's above application even without advertising the same in the Trade Marks Journal and without receiving any opposition: In furtherance of his above submission, he has invited my attention to a memorandum issued by the respondent's office on 22‑11‑1987, which indicates that there are a number of registered trade marks in favour of different parties with the prefix "Red" in respect of the same class of goods. He has also invited my attention to the fact that in respect of the appellant's another application for registration of the trade mark "Red", a notice in the Trade Marks Journal has been published on 1st July, 1985 (Annexure `J') to the memo of appeal.

4. Since there are a number of other trade marks registered with the prefix "Red", there seems to be no plausible reason to reject the appellant's application without advertising the same and without receiving the opposition from the other owners of the registered trade marks.

5. I would, therefore, allow the above appeal and remand the' case to the respondent with the direction to advertise the application in the Trade Marks Journal in accordance with the rule and thereafter if any opposition is received, the same may be dealt with in accordance with law.

The appeal stands disposed of in the above terms with no order as to costs.

AA./L‑20/K

Case remanded.