Trademark searches may have a bearing on deciding whether a
registration for a mark be sought or not. In a case decided in
2009, namely Sterling Machine Tools v. Central Govt. &
Ors. 2009 (41) PTC 481 (Del.), Sterling Machine Tools
challenged the certificate issued by the Joint Registrar of
Trademarks to M/s A,K Enterprises certifying that upon search, no
Trademark identical or deceptively similar to the Trademark
"BHARAT MARSHAL" was found to be registered
Sterling Machine Tools were applicants under Rule 24(1) of the
Trade and Merchandise Marks Rules, 1959 in Form TM-54 in respect of
the Trademarks "Bharat" and "Bharat Marshal".
Rule 24(1) briefly states that any person can make an application
to the Registrar in Form TM-54 to cause a search to be made in
respect of the specified goods classified in the fourth schedule
and ascertain whether any work or record resembles the said mark.
Sub Rule 2 permits the Registrar to take on record any objection in
case an incorrect search report was given and when the mark
assembles a mark, which was on record but was not disclosed.
Objection, however, in this regard has to be filed within three
months. Sub Rule 3 permits a person to make an application to the
Registrar in Form TM-60 to cause a search to be made and for issue
of certificate under Section 45 of the Copyright Act 1957. A
certificate is issued by the Registrar when there is no Trade mark
identical with or deceptively similar to the artistic work, already
registered or mark for which an application for registration was
pending. Rule 24(1) uses the word "resembles" and Rule
24(3) used the expression "identical with or deceptively
similar to another mark" when it so nearly resembles the other
mark so as likely to deceive or confusion. Resemblance of the two
marks which is likely to cause confusion is the criterion under
In addition a search had also been conducted by them through
Form TM-60 for the mark "BHARAT'. The Registrar of
Trademarks in response to the three search applications of the
petitioner had responded in negative and had informed that similar
marks on the register existed. The contradiction between the search
reports issued to the two parties was brought forth the Court.
In view of the facts and law in place, the Court held that
without going into further details it is left open to the Registrar
of Trademarks to go into the question of resemblance and deceptive
similarity as used in sub-rule 1 and 3 of the Rule 24 of the Trade
and Merchandise Marks Act, 1958. The matter being remanded back,
the Court opined that it was apparent that the Registrar had given
contradictory reports and the certificate dated 28th July, 1995
issued to AK Enterprise was without examining the earlier marks,
which had been registered. In this view, the matter was remanded
back to the Registrar of Trademarks to re-examine the same.
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