S. Jagadeesan, J. (Chairman).

1. The appellant has filed this appeal originally on the file of the Delhi High Court at New Delhi in CM(M) 400/1995 aggrieved by the order of the second respondent herein dated 17.5.1995 rejecting their application No. 481358 in class 9 for registration of the trade mark COBRA.

2. The appellant filed an application No. 481358 on 19.11.1987 for registration of the trade mark COBRA in respect of voltage stabilizers and parts and fittings thereof included in class 9 of the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as the) and the same was advertised in the Trade Marks Journal No. 1024 dated 1.2.1992 at page 1354. The first respondent herein filed their notice of opposition on 16.3.1992 to oppose the registration of the mark stating that they are engaged in the business of manufacturing electrical apparatus and instruments, electric cables, electric conductors under the trade mark COBRA which is a part and parcel of their trading style. The said mark of the first respondent was registered under No. 369325 and is being periodically renewed from time to time and is still valid. The said trade mark was originally owned by M/s. M.P. Electric Company of Bangalore who transferred the same on 5.12.1980 to M/s. Cobra Cables (India), who in turn, assigned the mark to the first respondent by instrument of assignment dated 15.1.1991 and thus the first respondent became the proprietor of the registered mark. The impugned mark since being identical, the registration of the same would cause confusion and deception and therefore it is not registrable under the provisions of Sections 9,11(a), 12(1) and 18(1) of the. The appellant filed their counter statement on 29.6.1993 denying all the material averments contained in the notice of opposition and further stated that they are using the impugned mark since 1978 and their goods are known to the trade and public on account of standard and as such, they have attained goodwill and reputation. The registration of the impugned mark is well within the provisions of the. The first respondent did not produce any evidence and they informed the Registrar as well as the appellant to that effect by their communication stating that they do not wish to file evidence under Rule 53(1), but rely upon the facts and statement made in the notice of opposition. The appellant filed evidence of their user by way of an affidavit in the name of one Mr. N.K. Jain, accompanied by Annexure-A consisting of statement of sale statistics from the year 1978-79 to 1992-93. Annexure-B series contain the unattested photostat copies of bills and Annexure-C contain the bills of printers and a few pages of telephone directory. After the completion of formalities, the matter was heard by the Deputy Registrar on 8.3.1995. Under the impugned order, the Deputy Registrar allowed the opposition No. DEL 7647 of the first respondent and refused registration of the trade mark of the appellant and rejected the application finding that the appellant did not produce any evidence to establish the user and as such, the appellants mark has no distinctiveness in respect of their goods and also because of the non use, the mark is not registrable under Section 12(3) of the. He further held that the goods of the appellant and the first respondent are of same description falling in class 9 and the first respondents mark being a registered one, the registration of the impugned mark in favour of the appellant would cause confusion and as such, the same cannot be registered. He also found that the registration will suffer from triple identity, that is, the marks are identical, the goods of both the appellant and the first respondent are same or of same description and the area of sale as well as the trade channel are also same. Aggrieved by the same, the appellant has filed the present appeal.

3. We have heard the arguments of Shri A.K. Goel for the appellant and Shri K.G. Bansal for the first respondent.

4. The learned counsel for the appellant with all force contended that the first respondent did not let in any evidence to establish their user by which their mark had attained distinctiveness and reputation among the traders. In the absence of any evidence of user, it is clear that the first respondent is not using the registered mark and their product is not in the market with such registered mark. In the absence of the registered mark of the first respondent in the trade, no question of confusion or deception would arise by the registration of the impugned mark which is in the market at least from 1984. Mere registration of the mark and without using the same will not give rise to any right for the registered proprietor to oppose the registration on the basis of the prohibition contemplated under Section 11(a) of the. It is also contended that by obtaining the registration and without using the said mark, it is not open to the registered proprietor to prevent the other from using the same. The registration, coupled with the user alone gives a right to the registered proprietor to oppose the registration of identical mark and as such, the Deputy Registrar has committed a grave error in rejecting the application of the appellant.

5. On the contrary, the learned counsel for the first respondent with equal force, contended that the burden is on the appellant to prove that there will not be any confusion or deception by registering the impugned mark. There is no dispute that the marks are similar and identical and the product of the appellant is also of same description. In such circumstances, the registration of the impugned mark would definitely dilute the reputation of the mark of the first respondent. Since the appellant did not discharge their burden, prima facie, it is clear that the impugned mark is identical and similar to that of the first respondent, the prohibition imposed under the is clearly attracted. The first respondent has registered the mark and the registration itself would amount to implied user and there is no need to let in any independent evidence to establish the user. The Deputy Registrar had discussed the evidence available on record and clearly found that the appellant had not discharged their burden and as such no interference is called for.

6. We have carefully considered the contentions of both the counsel.

7. The Deputy Registrar of Trade Marks rejected the application of the appellant on the ground that the impugned mark suffered from a triple identity, that is; (1) the marks are identical, (2) specification of goods is the same or of same description and (3) the area of sale or the sales channel is the same.

8. So far as this finding is concerned, there is absolutely no dispute. The main objection on the part of the learned counsel for the appellant is that the first respondent is not using the mark, whereas, the appellant had let in evidence in respect of the use of the impugned mark and hence, there cannot be any objection under Section 11(a) of the. Such a plea was raised on the assumption that the appellant is regularly using the impugned mark COBRA for Voltage Stabilizers and the documentary evidence produced by the appellant is more than sufficient to establish such a plea. In such circumstances, we have to consider whether the evidence produced by the appellant establishes their use of the mark COBRA. We have perused the sales statistics, Annexure-A to the affidavit of Shri N.K. Jain filed as evidence in support of application. It is a statement of the appellant without any reference to any of the returns submitted to the statutory authorities and not even authenticated by the Auditor. Hence, the self serving documents cannot be taken as valid evidence. The copies Invoices and the bills produced by the appellant at Annexures-D3 to D75 do not reveal that the appellant had sold the Voltage Stabilizers under the brand name COBRA. Some of the printed Bills/ Invoices bear the name of the appellant Jain Electronics. In those Cash/Credit memos, the monogram of Cobra along with the word COBRA is printed. What is the significance attached to the monogram of the cobra along with the words is not clear. In the description of goods sold by the appellant, it is simply mentioned Automatic Voltage Stabilizer without any reference to the trade mark. In such circumstances, it is very difficult for us to accept the plea of the appellant that they used the impugned trade mark in relation to the Voltage Stabilizers. Unless the trade mark with the description of goods or the goods identified by the trade mark is mentioned in the bills or invoices, the relation between the two cannot be inferred or cannot be said to have been established.

9. The appellant having filed the application for registration on the ground either as earlier user or the concurrent user of the impugned mark, it is for the appellant to establish the same. From the evidence available on record, we are of the concluded view that the appellant has miserably failed to establish the use of the impugned mark in respect of their goods Voltage Stabilizers. Further, in view of the undisputed fact that the first respondent is the registered proprietor of the trade mark COBRA, the Deputy Registrar has rightly rejected the application of the appellant for registration. We do not find any infirmity in the impugned order and accordingly the same is confirmed.

10. The appeal is therefore dismissed. No costs.