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32. The learned Senior Counsel for Respondent No. 2 submitted that the Appellant has been blowing hot and cold by taking inconsistent and untenable stands before Respondent No. 1 and this Court. The Appellant has relied on phonetic, structural and visual differences in 'HAVELI' formative Marks to oppose the objections raised by Respondent No. 1 against the applications for registration of various Trade Marks of the Appellant which contained the word 'HAVELI'. Hence, the Appellant has no right to now oppose the registration of the Impugned Marks.

b. The word 'HAVELI' lacks Trade Mark value and is non-distinctive under Section 9(1)(a) of the Act.

c. Multiple 'HAVELI' formative Marks exists on the Trade Marks Register and are extensively used in hospitality industry across India.

d. The Appellant has failed to secure registration of the Word Mark 'HAVELI' with consistent rejections by Respondent No. 1 for non- distinctiveness.

53. Accordingly, the Appellant has not been able to establish ownership over the Mark 'HAVELI' in absence of the registration of Word Mark 'HAVELI' or any 'HAVELI' formative Marks in Class 30, which is relevant for examining the deceptive similarity of the Impugned Marks.

54. The Appellant's reliance on the pending applications for the 'HAVELI' formative Marks claiming to be prior user of the Mark 'HAVELI' also cannot be sustained as the Appellant has taken a stand before Respondent No. 1 that the Appellant's Marks are phonetically, structurally and visually different. The Appellant has also not challenged any of the orders passed by Respondent No. 1 dismissing the applications filed by the Appellant for registration of 'HAVELI' formative Marks. Similarly, the Appellant has also not challenged the various orders passed by Respondent No. 1 dismissing the oppositions filed by the Appellant against other proprietors having 'HAVELI' as part of their registered Trade Marks.

59. The public search of the Trade Marks Registry reflects that there are several Trade Marks containing the Mark 'HAVELI' granted to the parties other than the Appellant in various Classes including Class 43 as per the table mentioned in Paragraph No. 44 above. It is evident that 'HAVELI' has been used by various proprietors for providing services of restaurants, dhabas, cafes, hotels and guesthouses using 'HAVELI' formative Marks across India. Respondent No. 1 has passed various orders against the Appellant rejecting the applications filed for the 'HAVELI' formative Marks on the ground of non-distinctiveness and in view of the oppositions filed by prior registered proprietors. Additionally, Respondent No. 1 has also dismissed various oppositions filed by the Appellant opposing the registration of 'HAVELI' formative Marks.