Intellectual Property Appellate Board
Champagne Moet And Chandon vs Moet'S on 27 October, 2004
Equivalent citations: 2005(30)PTC323(IPAB)
JUDGMENT
S. Jagadeesan, Chairman
1. The appellant has filed this appeal against the order of the Deputy Registrar of Trade Marks, dated 12.6.1995, disallowing the opposition of the appellant.
2. The respondent herein filed an application No. 457636 on 28.7.1986 for registration of the trade mark "MOET'S" in respect of meat, fish, poultry and game and meat extracts included in class 29 of the Fourth Schedule of the Rules framed under the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as the Act). The said mark was advertised in the Trade Marks Journal No. 965 dated 16.8.1989 at page 637. The appellant herein M/s. Champagne Moet and Chandon, filed their notice of opposition on 20.10.1989 opposing the registration of the impugned trade mark on the ground that the appellants are the registered proprietor in India of the trade mark 'MOET' label under No. 396612 as of 15.10.1982 in class 33 in respect of wines and especially champagne wine. They are also the registered proprietors of the trade mark MOET and CHANDON under No. 439835 B as of 5.7.1985 in class 33 in respect of wines, sparkling wines, champagne, wines, spirits, liquors. They also stated that they are using the said trade mark for more than 54 years and the same has attained goodwill and reputation in the market. The impugned mark is not registrable under Sections 9(1), 11(a), 11(e) and 18(1) of the Act. The respondent filed the counter statement on 22.11.1990 denying the material averments contained in the notice of opposition by stating that the trade mark MOET'S was first coined and adopted by the respondent in 1967 from the Indian/Hindi word 'MOHIT' which is the name of one of the partners. In addition, MOET'S is also a part and parcel of the trading style of the respondent's firm and they are using the mark continuously since 1967. The appellant filed their evidence on 9.7.1991 by way of an affidavit dated 3.5.1991 in the name of one Mr. Yves. Bernard alongwith the Photostat copies of invoices, advertisement cuttings and certificate of registration. The respondent also filed their evidence on 31.12.1991 by way of an affidavit dated 23.12.1991 in the name of Mr. Yugal Kishore Aggarwal with a few copies of invoices. The respondent further filed an affidavit of Shri Ravi Meshawari, Brijesh Sood and Pawan Chaudhary, the agents or dealers by filing an Interlocutory Application which was allowed and the evidence was taken on file. After completion of these formalities, the matter was listed for hearing on 1.6.1995, on which date, there was no representation for the appellant. The Deputy Registrar heard the counsel for the respondent Shri Mohan Vidhani and passed the impugned order disallowing the opposition No. DEL 6451 of the appellant and directed to proceed for registration of the application of the respondent finding that the respondent proved the substantial use of their mark and thereby over-ruled the objection of the appellant existing under Sections 11(a) and 11(e) of the Act. On the same reasoning, the Deputy Registrar also over-ruled the objection under Sections 9 and 18(1) of the said Act. Further, the Deputy Registrar found that the impugned mark is registrable within Section 12(3) of the said Act. He also found that the goods of the appellant and the respondent are not the same or of the same description. Aggrieved by the said order, the appellant filed an appeal in No. CM(M) 487/1995 on the file of the High Court of Delhi which stood transferred to this Appellate Board by virtue of Section 100 of the Trade Marks Act, 1999 and numbered as TA/121/2003/TM/DEL.
3. We have heard Shri N. Mahabir and Ms. Sheetal Vohra the counsel for the appellant and Shri Mohan Vidhani, counsel for the respondent.
4. The learned counsel for the appellant contended that the appellants are dealing in liquor and for their trade they have obtained the registration of the mark MOET label as early as 1982 in class 33. The respondent applied for registration of the same identical mark for meat, fish, poultry, games and meat extract falling under class 29. When the matter was listed for arguments, on behalf of the appellant, a petition was filed on 31.5.1995 in TM 56 seeking an adjournment of one month on the ground that the counsel was not in station. The Deputy Registrar refused the adjournment and allowed the counsel for the respondent to argue the matter. Hence, the appellant was not given due opportunity to be represented through its counsel. On merits, the learned counsel contended that the appellant has the registration of the trade mark MOET label in respect of wines and especially champagne wine, which statement is not controverted by the respondent. The plea of the respondent is that they have coined the word MOET'S in 1967 and the same was adopted from the word MOHIT which is the name of one of their partners. The said Partner Shri Mohit Bindra, while he was a toddler, used to call himself as MOET and thereby the adoption of the mark was made. This plea of the respondent cannot be accepted at all. Even assuming that the word has been coined since 1967, the application for registration was made by the respondent only on 28.7.1986, by which time the appellant's mark MOET has obtained a reputation and goodwill in India in respect of liquor. When once the appellant's mark had got a reputation and goodwill, then the registration of a similar mark even in respect of other goods may cause confusion and deception in the trade as if such goods are being from the appellant's channel, when the appellant has no connection with those goods. Further, the respondent is providing accommodation for cocktail parties by supplying food and beverages, they are fully aware about the appellant's trade mark and as such, their adoption of the impugned mark is not bona fide. Consequently, they are not entitled for registration even under Section 12(3) of the said Act, The learned counsel has relied upon the following judgments in support of his contentions:
(1) N.R. Dongre and Ors. v. Whirlpool Corporation and Ors., AIR 1995 DEL 300; (2) Alfred Dunhill Limited v. Kartar Singh Makkar and Ors., 1999 PTC 294; (3), Reliance Industries Limited v. Anand Traders and Ors., 1999 PTC 414; (4) Sarabai International Ltd. and Anr. v. Sara Exports, 1985 PTC 105; (5) V.S. Dhanasekar and Ors. v. K. Lokaiyan and Ors., 2004 PTC 455; (6) Beecham Group Plc, v. S.R.K. Pharmaceuticals, 2004 PTC 391; (7) Marconi Electronics v. Marconi Company Ltd., 2004 PTC 433.
5. On the other hand, the learned counsel for the respondent contended that their mark is not similar to that of the appellant's mark and hence it cannot be said that the respondent has copied the appellant's mark. The letter 'E' is in small form and there are two dots above that letter to synchronize the size. Apart from this, there is an apostrophe 'S' which makes all the difference. So far as the adoption of the mark is concerned, as stated in the counter the respondent has coined the word from the name MOHIT who is one of the partners and who pronounced the name as MOET when he was a toddler. Moreover, the appellant's registration is in respect of goods falling under class 33, whereas, the respondent's mark is in respect of goods falling under class 29. The goods being not the same or the description of the same not being the same, there cannot be any confusion or deception. The respondent has applied for the registration of the same mark word per se in class 16 in respect of paper and paper articles, card board and card board articles, printed matter, newspaper and periodicals, books and stationery under application No. 457636 and the same was accepted by the Assistant Registrar of Trade Marks, New Delhi, by order dated 8.12.1979, by disallowing the Opposition No. DEL 6496 filed by the appellant herein. The appellant has not challenged the said order. When the appellant permitted the respondent to have the identical trade mark in respect of goods falling under class 16, there cannot be any valid objection for the registration of the same mark in respect of goods falling under class 29 and as such, there is absolutely no merit in the appeal and the same is liable to be dismissed.
6. We have carefully considered the above contentions of the respective counsel.
7. Since the appellant had the opportunity to argue the matter elaborately before us, we are not inclined to go into the question of failure of the Deputy Registrar of Trade Marks to give the appellant sufficient opportunity by adjourning the matter to the convenience of the appellant's counsel. We are of the view that having heard the matter in full, there is no point in remanding the matter back to the Deputy Registrar even if we agree that the refusal of the adjournment was not justified.
8. The appellant who is dealing with wines and liquor has obtained the registration of the trade mark Champagne Moet and Chandon in 1985 in India. They also claim that they have obtained the trade mark Moet in India and their company had been selling their products in India at least since 1947. They also claim that the most ancient document dating to 1906 relates to commission to agents in India. The evidence filed by the appellant by way of affidavit of their Chairman discloses the sales statistics in India identified by their trade mark Moet for ten years since 1980. In the same affidavit, he has also furnished their distributors in India, viz., United Breweries International, New Delhi and also one duty free shop where the appellant's products can be obtained is India Tourist Development Corporation Ltd. From this, it is clear that the appellant has claimed the user of the trade mark Moet since 1947 and thereby the appellant company has also attained reputation and goodwill in the trade in respect of their products, i.e., wine. If the impugned mark is registered, the same would cause confusion and deception as per Section 11(a) of the said Act.
9. In order to decide the question of confusion and deception one has to see as to what reputation and goodwill the appellant has attained, more particularly relating to their goods. We have perused the documents produced by the appellant. Though some of the bills are filed before the Deputy Registrar, more documents have been produced before us even without obtaining any leave. However, taking into consideration of the functions of the Board to render justice and not to shut the door for any one on technicalities, we have perused all the documents filed before us which also include documents filed before the Deputy Registrar, Before the Deputy Registrar, the appellant has also filed a supporting affidavit from the Zonal Manager of the United Breweries International, who is their dealer. The Zonal Manager, Mr. Yugal Kishore Aggarwal has clearly stated in the affidavit that he had been associated with his employer company M/s. United Breweries International since 1982 and the facts furnished by him are from his personal knowledge and also from the books and records of the company. He has furnished the sales statistics from 1988 to 1991. In this affidavit, the said Zonal Manager has referred the appellant as Moet and Chandon, Similarly Exhibit 'A' series, the invoices filed by the appellant are pertaining to the period 1988 to 1991. There is absolutely no material placed by the appellant before the Deputy Registrar for the use of the said mark in India except the above.
10. We have perused the documents produced by the appellant consisting of the Xerox copies of a large number of pamphlets, advertisements and a very few correspondence with some of the. Indian companies. The Xerox copies of the pamphlets are the literature about the business house of the appellant. There is nothing relevant to identify the appellant's trade in India. Some of the Invoices are addressed to the Embassies and as such, the products imported under these Invoices can be inferred for the exclusive use of the embassy people. Ultimately, there is absolutely no evidence or material on record to establish that the appellant's products are openly available in the market in India which alone would establish the goodwill and reputation of the appellant in the trade. Apart from this, we also find from the documents produced by the appellant that none of these documents referred to the appellant's trade mark 'Moet' alone. The Invoices as well as the advertisements are consisting of the composite mark Moet & Chandon. Even the earlier registered mark of the appellant is in the form of a logo containing the words MOET BURT IMPERIAL MOET & CHANDON. When the appellant has not produced any evidence that they attained a reputation and goodwill in respect of their products in India with their mark MOET, then, we have to hold that the appellant has miserably failed to establish their plea of prior user of the said mark as well as the attainment of reputation and goodwill in the trade with the said trade mark. When that be so, as rightly pointed out by the Deputy Registrar of Trade Marks, their objection under Section 11(a) has to fail. We also concur with the said finding of the Deputy Registrar for the above reasoning.
11. When there is no confusion or deception, we do not think, there is any necessity to go into the other questions, especially taking into consideration of the fact that the respondent is seeking the registration of the impugned mark in respect of the goods falling under class 29, which are of different description and different kind. Further, the distributing channel for the respondent's goods is totally different. When the appellant has failed to discharge its burden of proof to establish the opposition, on that short ground, the appeal can be disposed of. But, however, the respondent has claimed the previous user, we think it would be better to discuss that also.
12. The respondent had produced the evidence before the Deputy Registrar by way of an affidavit of Shri Sandeep Bindra, the Partner, wherein the sales statistics had been furnished from 1968-69 to 1992-93. The other documents are pertaining to the sales from 1987 to 1992. The assessment order of the Sales Tax authorities establishes that the respondent firm was in existence since 1980. The assessment proceedings are relating to the period 1979-80 to 1987-88. The available material clearly establishes the use of the impugned mark by the respondent atleast from 1979. When the appellant has failed to let in any evidence in respect of the use of the mark Moet, what little evidence is available on the side of the respondent has to be given due merit. The Deputy Registrar, on the basis of the evidence let in by the respondent has found that the respondent is the earlier user of the impugned mark. Here again, we concur with the finding of the Deputy Registrar.
13. Though the learned counsel for the appellant has referred to a number of judgments in support of his contention that the impugned mark cannot be registered even though the respondent's goods are not the same or not of same description in view of their reputation and goodwill and on the question whether the respondent is entitled for the benefit of Section 12(3), we are of the view that there is no need for us to elaborate the judgment by referring to those cases as we have already held that the appellant has not established that they have attained reputation and goodwill in India on the date of the application of the respondent for registration of the impugned mark. There is no case to call Section 12(3) to rescue when the mark is otherwise entitled to be registered under the other provisions of the Act.
14. For the reasons stated above, the appeal fails and the same is dismissed. No order as to costs.