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The said applications were advertised before acceptance. The appellant herein M/s Worldwide Brands Inc filed their opposition Nos. 61206, 61204,61205,61207,61506 and 54717 respectively opposing the registration of the impugned mark of the first respondent on the ground that they carry on an established international business in clothing, suits, coats, vests, trousers, shirts, sweaters, belts, neckties, scarves, hats, caps, footwear and headgear. Further it is stated that they are having worldwide business under the trade marks Camel Collections and Camel Collection with device which are registered and/or applied for registration in other countries. In India they have applied for registration for the mark Camel Trophy and Device under application No. 692742 on 29.12.1995 in class 25 in respect of clothing, footwear and headgear. By virtue of their worldwide use, their mark has acquired a distinctive nature. The impugned mark is virtually identical and/or deceptively similar to that of the trade mark of the appellant and as such the registration of the impugned mark would be contrary to Sections 11(a) and 11(e) of the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as the said Act). Further the first respondent's mark cannot be taken into consideration as the same is dishonest, copying the well-known worldwide trade mark of the appellant and the registration of the impugned mark would be contrary to Section 9 as well as 18(1) of the said Act. After following the procedure of filing evidence in support of the parties and reply therefor, applications were taken up for disposal, the Assistant Registrar of Trade Marks rejected the opposition of the appellant and accepted the applications of the first respondent for registration on the ground that the appellant has not let in evidence with regard to their use of the mark in India and also they did not produce any evidence to show that their mark is a well-known mark in India thereby it enjoys the transborder reputation. In the applications filed by the appellant for registration of the trade mark in India the claim is one of proposed user and the applications are of the year 1995 and 2000. The appellant did not produce any evidence in respect of their use of the mark in India and as such their opposition is devoid of any merits and consequently the trade mark of the first respondent were directed to be registered. As against the said orders of the Assistant Registrar, these appeals have been filed.

4. Shri Habibullah Basha, learned senior counsel on behalf of the appellant contended that the Assistant Registrar totally failed to consider the plea of the appellant that originally the camel brand was owned and used by M/s R.J. Reynold Tobacco in class 25. This claim was made in the oppositions filed by the appellant and also in the evidence let in thereafter. The learned senior counsel further contended that their camel brand cigarettes were very familiar in India and they were available in the duty free shops and also in other channels. As the brand was so familiar in respect of cigarettes, the adoption of the same by the first respondent is nothing but copying the well-known mark of the appellant. He also relied upon several documents to claim the transborder reputation by drawing our attention in respect of registration of the mark in various foreign countries and also the sale of the products in other countries where the appellants are having stores. He further contended that the adoption of the mark by the first respondent being in bad faith as the first respondent was a licensee under a licence agreement entered into with the registered user of the trade mark of the appellant. The invoices relied upon by the first respondent for the use of the impugned mark cannot be for their own benefit as the manufacture of the product was on behalf of either the licensee or the registered user of the appellant. Consequently it is not open to the first respondent to claim any independent right in respect of the use of the mark.

5. Learned Counsel for the first respondent on the contrary contended that the claim of trans-border reputation was not established by the appellant. Even assuming that such reputation has been made out, it was only in respect of cigarettes. First respondent's claim of the use of the trade mark is in respect of readymade garments. Appellant has totally failed to establish that they have earned a reputation in India by using their mark in respect of readymade garments or otherwise. They also failed to make out a case that their mark had attained distinctiveness in India. Apart from that the appellant also did not produce any evidence to prove their plea that their trade mark was advertised in India and thereby their mark is so familiar in India and has become a well-known mark in India and the same did not attain any transborder reputation and consequently the opposition fails. Since it is a well considered order and the same do not warrant any interference, the appeals are liable to be dismissed.

8. Learned senior counsel for the appellant also relied upon the following judgments in support of the plea of transborder reputation:

N.R. Dongre and Ors. v. Whirlpool Corporation Calvin Klein Inc v. International Apparel Syndicate 1996 (16) PTC 293 Alfred Dunhill Limited v. Kartar Singh Makkar and Ors. 1999 PTC (19) 294 Pizza Hut International LLC and Ors. v. Pizza Hut India Pvt. Ltd. 2003 (26) PTC 208 Hanuman Mal Choradia v. F.W. Woolworth Co.and Anr. 2004 (29) PTC 477

9. Learned Counsel for the first respondent vehemently contended that the documents relied upon by the appellant at page 61-128 in volume-1 cannot be relied upon as there are certain black outs in those documents. The evidence relied upon by the appellant reveals that first respondent is the prior user in India of the impugned mark and it relates to different goods. When admittedly the trade channel for the appellant's goods are totally different, there cannot be any confusion, even assuming that the appellant's mark is Worldwide brand. The plea of the appellant that the mark 'camel' is worldwide is also not made out and further except the vague statement that the camel brand cigarettes are available in the duty free shops, there is absolutely no evidence to establish that the said mark is so well-known in India or the same attained the transborder reputation. The judgments relied upon by the learned Counsel for the appellant of course throw some light on the transborder reputation. We make it clear that transborder reputation can be established only by letting evidence before Registrar of Trade Marks that the mark is so well known or familiar in India and most of the general public are fully aware about such mark connecting the appellant. The documents relied upon by the learned Counsel for the appellant with regard to advertisements as well as calendar might have been available in other countries. In the absence of any evidence to show that they were in circulation in India, the same cannot be relied upon for any transborder reputation. The only judgment relied upon by the learned Counsel for the appellant which has some relevance is N.R. Dongre v. Whirlpool. In the said case the Supreme Court has held that though there was no sale in India, the reputation of the plaintiff company was travelling transborder to India as well as through commercial publicity made in magazines which are available in/or brought to India. The following is the gist of the finding: