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I. Rectification petitions filed against the Plaintiff's registrations I.I. Trademarks No. 160442 and 160443

33. Defendant filed two petitions before the Assistant Registrar of Trademarks, Chennai seeking cancellation of Plaintiff's trademark No. 160442 in class 09, and No. 160443 in class 11 for the trademark " ." These petitions were decided through a common order on 12th January, 2005 in favour of the Plaintiff [Mark X-50]. Before the Trademarks Registrar, Defendant alleged that the afore-noted trademark had not been used for a continuous period of five years and one month preceding the date of filing of cancellation petition, and was wrongly registered without cause. They asserted that they were the prior and renowned user of the trademark "TOSIBA" in respect of domestic electrical appliances, since 1975 and filed invoices, bills, excise gate pass, application for central excise license, factory license, promotional expenses etc. to demonstrate their use. The Petitioner submitted their response along with supporting evidence to the petitions. Defendant defaulted in pursuing the matter, and failed to join the hearing, resulting in an ex-parte disposal based on the presented material.

45. The decision of the Registrar was assailed by the Plaintiff before the High Court of Calcutta, where they principally challenged Defendant's locus to seek rectifications. According to Plaintiff, the Defendant did not qualify as a "person aggrieved" to maintain the trademark cancellation petitions, particularly since they did not trade in washing machines or spin dryers. In this regard, the Court acknowledged the similarity between the conflicting marks - "TOSHIBA" and "TOSIBA" - whose simultaneous existence entailed the prospects of public deception. In its order dated 27th September, 1993, the Court regarded the Plaintiff's overstress on the distinction in trademark classes under which the parties operated as misconceived. Noting that the classification of goods is a creation of statute, the Court found that washing machines (covered in class 7) and electric cooking oven (class 11) are broadly considered as "goods which comprise household artefacts for modern living." Further, the existence of the mark "TOSHIBA" in respect of washing machines and spin dryers would preclude the Defendant from venturing into this arena. Accordingly, the Defendant was held to be a person aggrieved by the Plaintiff's registration of "TOSHIBA" in class 07. As regards the question of failure to use the mark, the Court agreed with the Registrar's decision to omit goods from Plaintiff's registration.

47. As an outcome, the purview of goods covered by trademark registration No. 273758 in class 09 remains intact.

I.V. Current status of Plaintiff's registrations

48. For ease of reference and convenient reading, the outcome of the afore-noted rectification petitions is encapsulated in the following chart:7 Trademark and No. Class and Goods Class 9 scientific, nautical, survaying and electrical apparatus and instruments (including wireless), photographic, cinematographic, optical, No.: 160442 weighing, measuring, signalling, checking (supervision), life-saving and teaching apparatus and instruments, coin or counter-

54. No further adjudication is necessary regarding issues No. 9 and 10 as the Defendant's registration of the trademark "TOSIBA" in class 05 under No. 510314 has been expunged from the Register of Trademarks. This removal follows a successful rectification petition filed by the Plaintiff in a judgment dated 01st March, 2008, as recognized by this Court in order dated 10th January, 2020 in W.P.(C) 8382/2007. Consequently, there is no need to deliberate on the effects of the Defendant's registration or the grounds for its rectification.