In a setback to Gujarat-based detergent and soap- maker Nirma Chemical Works, the Intellectual Property Appellate Board (IPAB) has struck down the 'Nirma' trade mark in Class 6, which relates to metal goods, from the Trade Mark Register. The order came in response to an appeal by Mumbai-based Nirmal Industrial Controls after its plea for registration of 'Nirmal' mark was turned down by the Registrar of Trade Marks, Ahmedabad.
Nirmal Industrial Controls had applied for the registration of the trade mark ‘Nirmal’, which was opposed by Nirma Chemicals mainly on the ground of deceptive similarity with registered trade mark ‘Nirma’ in Class 6. The applicant stated that the respondent had not used the impugned mark Nirma for any of the goods falling in Class 6. It also sought removal of the Nirma mark in Class 6 from the register.
The IPAB bench of S Usha, vice-chairman, and V Ravi, technical member, while criticising the Registrar of Trade Mark in refusing the plea for registration of Nirmal mark, said that the respondent has been unable to prove that the applicant had resorted to fraud or chicanery in the competitive struggle when it adopted the mark Nirmal and it is not even remotely conducive to source confusion.
“In legal terms there is no buyer for Nirma in respect of goods falling in Class 6. The exclusive right to the use of the registered trade mark in relation to the goods for which it is registered mentioned in Section 28(1) subsumes the factual use of the mark in the Indian market. Hence, our conclusion is that the impugned mark should go.”
The registration certificate was issued by the Registrar of Trade Marks on January 15, 1992 and the rectification application was filed on June 26,2010. The applicant in its argument said there has been no use of the impugned mark till date by the respondent nor is there any bonafide intention to use the impugned mark for the goods covered under the said class. The respondents are mainly engaged in the business of coal, limestone and dolomite powder.
The applicant is a