Sanjeev Kumar Chaswal, Member (T)

Brief facts

1. In the instant case, the applicant has filed the present rectification application for cancellation of trademark numeral "1" under registration certificate No. 864841 in class 29. The applicant claims to be lawful proprietor of the trademark/label 'SHRI G-1' and was coined and adopted and subsequently applied in the year 2012 vide application No. 2328821 in class 29. This trademark/label was adopted bonafidely that there was no such or similar trademark in use or in existence in respect of the said goods. The respondent claimed that they had adopted the trademark numeral "1" and started using the same somewhere in the year 1981 and had applied for registration of trademark numeral "1" in the year 2000 claiming use from the year 1981 and has obtained the registration of trademark numeral "1" under registration certificate No. 864841 in class 29 for the edible oils and mustard oil in the year 2005.

2. The applicant has questioned the validity of the registration of the trademark "1" and how can the single numeral such as trademark numeral "1", which is inherently incapable of performing the function of the trademark can be granted to any individual or to any entity. The respondent cannot be allowed to claim exclusivity on a single numeral mark, which is inherently, lacks distinctiveness, as trademark numeral "1" has already been used and is being used by hundreds other users prior and after the respondent for the same goods. The respondent cannot be permitted to ouster and keep away other users on the basis of its fraudulent and undeserving registration which has been granted to the respondent by the Trade Mark registry.

Arguments of the Applicant:

3. The applicant is manufacturing and marketing edible oils, mustard oil for past several years under the trademark/label "SHRI G-1" and subsequently applied in the year 2012 vide application No. 2328821 in class 29. This trademark/label was adopted bonafidely that there was no such or similar trademark in use or in existence in respect of the said goods.

4. The trademark/label of the applicant represents device of car in a unique distinctive manner and the said trademark/label 'SHRI G-l' taken as a whole is in a capable or distinguishing the goods of the applicant from all others including the respondent.

5. The applicant has filed a trademark application No. 2328821 in class 29 for registration of trademark/label 'SHRI G-l'. During the course of the examination of the said application by the Trade Mark Registry, the Registrar did not cite the impugned trademark of the respondent as conflicting and the said application is pending before the Registrar of the Trade Mark for registration.

6. The respondent No. 1 had issued a ceased notice on 30th July, 2012 to the applicant herein, accordingly, the applicant suitably gave a reply through his counsel in the month of August, 2012. The respondent did not raise any further objection to the use of the applicant trademark/label 'SHRI G-l' till November 2013 when the civil suit was filed by the respondent against the applicant herein.

7. The applicant has able to establish out the substantial sales of the goods under the trademark/label 'SHRI G-l' and the distinctive of the applicant of the aforesaid goods and business. The said trademark/label 'SHRI G-l' is used continuously and openly to the complete knowledge of the respondent herein.

8. The respondent had adopted the trademark numeral "1" and started using the same somewhere in the year 1981 and had obtained the registration of trademark numeral "1" under registration certificate No. 864841 in class 29 for the edible oils and mustard oil under the Trade Marks Act 1999. The applicant has questioned the validity of the registration of the trademark numeral "1" from its initial stage when the respondent served a notice to the applicant as the trademark numeral "1" is invalid illegal and liable to be cancelled.

9. The single numeral such as trademark numeral "1" is inherently incapable of performing the function of the trademark. Hence, exclusivity to the same mark cannot be granted to any individual or to any entity. The respondent cannot be allowed to claim exclusivity on a single numeral mark, which is inherently, lacks distinctiveness.

10. The trademark numeral "1" has already been used and is being used by hundreds other users prior and after the respondent for the same goods. The respondent cannot be permitted to ouster and keep away other users on the basis of its fraudulent and undeserving registration, which has been granted to the respondent by the Trade Mark registry.

11. The trademark numeral "1" is common, generic, descriptive and special used in the trade to designate to quality and grade. Therefore, the respondent is not solely entitled to monopolize the same. Moreover, trademark numeral "1" is denote to a layman as best quality and the trademark numeral "1" solely refers to quality or character which is inherently incapable of distinguishing the goods as well as performing the function of a trademark. So there is no doubt that the respondent trademark numeral "1" is clearly descriptive and devoid of any distinctive character.

12. The onus of proving the secondary distinctiveness to trademark numeral "1" is on the respondent. But the respondent has miserably failed to prove any such distinctiveness including secondary distinctiveness qua impugned trademark numeral "1".

13. The respondent has not submitted sales bills from the year 1981 but has submitted from the year 2001 to 2013, whereas the respondent has claimed the use of the said trademark numeral "1" from the year 1981. The respondent has not filed any advertisements and other documents which prove the use of the trademark by the respondent. The respondent has manipulated and fabricated the sales bills submitted before this court therefore, the sales bills submitted by the respondent do not inspire confidence and the writing pattern and style on every single bill is neat and identical. A simple cursory glance across all these invoices raises the suspicion that the said bills have been prepared in one go by one person.

14. That during the proceedings before trial court, the same apparent glaring manipulation was pointed out by the Additional District Judge and there was apparent fabrication of the alleged bills filed by the respondent from the year 2001-2013, wherein the price printed on the bills was the same for all these 12 years. So it is impossible to believe that the product of the respondent has been sold at the same price from the years 2001 till 2013.

15. In support of his arguments Mr. Miglani, counsel for the applicant has submitted following plethora of cases.

"1. Rhizome Distilleries P. Ltd. & Ors. v. Pernod Ricard S.A. France 2010 (42) PTC 806 -- No one can claim exclusive or proprietary rights over such words.

2. I.T.C. Limited v. G.T.C. Industries Ltd. and Ors., MIPR 2008 (I) 194. -- The word "MAGNUM" is a laudatory term. This word can serve an indication of characteristic of the goods. Section 9(1)(b) which contains an absolute bar for registration of any descriptive and laudatory term. The word "MAGNUM' in view of above, can serve as an indication of character or quality or value of the goods.

3. M/s. Rochem Separation Systems (I) Pvt. Ltd., v. Tas Engineering Co. Pvt. Ltd. AIR 2001 Bombay 210 : 1950-2000 (23) PTC (Suppl) (2) 120 (Bom) -- Merely because it was using the descriptive name when none others were using the technology to manufacture desalination plants would not make the name distinctive which would restrain other manufacturers from using the technology and the name associated with the technology.

4. Krishna Rao And Lakshmaiah v. Teju Singh, Appellant V. Shanta Devi, AIR 1974 A.P 274 -- The first question for determination is whether the words "One Day" are of a descriptive nature or fanciful. We do not agree that the words are fanciful. According to us the words "One Day" are words of common usage and purely descriptive of the nature of the business.

5. Hindustan Development v. The Deputy Registrar Of Trade Marks AIR 1955 Cal 519 Whether the word "Rasoi" even if it be held to have a direct reference to the character and quality of the goods and to be distinctive, it is a common word of the language of which no monopoly should be granted to a particular trader. It is undoubtedly true that the common words, of a language are public property and that no one should be allowed to appropriate one of such words to his exclusive use and thereby deprive other persons of the legitimate right to use the said word.

6. Rajinder Kumar Aggarwal -- Petitioner v. -- Union Of India and Anr. 2007 (35) PTC 616 -- The term "Aggarwal" being a surname and also the name of a sect/caste in India is not entitled to be registered as trade mark.

7. Suresh Kumar Jain v. Union Of India and Anr. 2012 (49) PTC 287 (Del) (DB) -- Registration of trademark 'Laminated Veneer Lumber (LVL)'--Mark was generic in character--No evidence produced to show that the mark has acquired distinctiveness -- Held that the registration of mark has been obtained by false statement and is a fraud.

8. Cadila Healthcare Ltd. Appellant v. Gujarat Co-Operative Milk Marketing Federation Ltd. & Ors. 2009 (41) PTC 336 (Del.) (DB) --There cannot be any doubt that the word 'Sugar Free' is not inherently distinctive and is clearly descriptive in nature.. 'Sugar Free' prima facie has not attained any distinctiveness, as alleged by the appellant outside the field of sugar substitute artificial sweeteners and the appellant would not be entitled to exclusively claim the user of the expression 'sugar free' in respect of any product beyond its range of products and the respondent cannot be restrained from absolutely using the expression 'Sugar Free', particularly in the descriptive sense.

9. Sunstar Overseas Ltd. Plaintiff v. Rameshwar Dass Garg -- 2011(46) PTC 89 (Del) in this case the rival marks "AALISHAN" (use of the defendant) and the plaintiffs ALISHAAN) are phonetically similar to the point of identity. The term "AALISHAN" in Hindi means "Magnificent". In relation to rice and other products of any kind of grain, there is an attributive, or laudatory element, but at the same time is a common word. It is even publici juris. In such an event the user or adopter of the mark has to establish a fair degree of secondary meaning or acquired a distinctiveness of that mark in respect of the product.

10. Radico Khaitan Limited v. Carlsberg India Private Limited 2011 (48) PTC (Del.) it is recognized in the field of the trademarks that there are certain numerals which are considered to be of non distinctive character and also having some connection with the trade. Further, it also clarifies the position in the law that the numeral trademarks which are intertwined with other features can succeed for registration. But then it is to be looked into that the monopoly can be accorded to the numeral per se or the mark in totality.

11. P.P. Jewellers Pvt. Ltd. v. P.P. Prime Properties & Promoters (P) Ltd. 2009 (41) PTC 21--The burden in the instant case for the Plaintiff to show that the letter mark PP is distinctive is indeed formidable. However, on the facts of the present case the Plaintiffs have not passed the first test which is to show that the letter mark PP is distinctive and they in fact adopted and used the mark PP per se for any of their products and services at any point in time. It is only thereafter that the other parameters come into play."

Arguments of the respondent:

16. The respondent has started the use of the trademark numeral "1" in respect of the edible oils and mustard oil since in the year 1981 and applied for registration of the trademark on 9th July, 1999, the registration was granted by the trademark registry on 29th July, 2005, the said registration is renewed having validity up to 9thJuly, 2019.

17. The respondent has started using the Agmark on its trademark numeral "1" since 15th November, 2000, the Agmark was granted to the respondent under the provisions of the agricultural produce (grading and marketing) Act of 1937 under the certificate No. A/1 No. 006463 dated 15th November, 2000 and the said certificate has been renewed from time to time and is valid up to the year 31st March, 2015.

18. The respondent application and use is much prior to the applicant herein, though the respondent applied for trademark/label "SHRI G-l" on 9th May 2012 as proposed to be used mark for class 29, which much later to the respondent claimed the use and the respondent has been using the mark since 1981 and applied for registration in the year 1999.

19. That the applicant has not claimed the use of the trademark/label "SHRI G-1" as the respondent has failed to submit a single sales bill in support of his case. This rectification application is counterblast to respondent who had filed a civil suit against the applicant.

20. The respondent has already prima-facie established the trademark numeral "1" as quite distinctive character to the goods in which the mark is registered.

21. The respondent has discharged his burden before the advertisement of the trademark journal. The trademark registry has allowed the publication of the trademark/label of the respondent only after carrying out the scrutiny of the trademark/label of the respondent. Once the trademark is registered the registration of the trademark to be prima-facie evidence for its validity.

22. The rectification has been sought on the ground that the trademark numeral "1" was not distinctive or cannot be distinctive, the relevant date claimed to be used has to be examined as a date of distinctiveness has provided under section 32 is that after registration and before commencement of any legal proceedings challenging the validity of such registration, acquired a distinctive character to the goods in which the trademark is registered as the respondent has already established the trademark numeral "1" has acquired distinctive character for the aforesaid goods.

23. In support of his arguments, the counsel for the respondent has submitted following plethora of cases.

Automatic Electric Limited v. R.K. Dgawan & Anr. 77 (1999) DLT 292 : 1999 (19) PTC 81 (Del) -- The defendants got their trademark "DIMMER DOT" registered in Australia. The fact that the defendant itself has sought to claim trade proprietary right and monopoly in "DIMMER DOT", it does not lie in their mouth to say that the word "DIMMER' is a generic expression. Use of the word "DIMMER' by others, this defense is not available to the defendants.

CONCLUSION

24. The counsel for applicant Mr. M.K Miglani has mainly argued and highlighted his submissions that firstly the respondent impugned single digit numeral such as trademark numeral "1" is inherently incapable of performing the function of the trademark, as it lacks distinctiveness, secondly trademark numeral "1" has already been used and is being used by hundreds other users prior and after the respondent for the same goods. Thirdly the trademark numeral "1" is common, generic, descriptive and special used in the trade to designate to quality and grade. Fifthly, the onus of proving the secondary distinctiveness to trademark numeral "1" is on the respondent. Lastly, the respondent has submitted from the year 2001 to 2013 the writing pattern and style on every single bill is neat and identical. A simple cursory glance across all these invoices raises the suspicion that the said bills have been prepared in one go by one person.

25. Per contra, the counsel for the respondent Mr. P.K. Jain has vehemently submitted that firstly, the respondent has been using the mark since 1981 and applied for registration in the year 1999 and their use is much prior to the applicant herein. Secondly, respondent has started using the Agmark on its trademark numeral "1" since 15th November, 2000, Thirdly, this rectification application is counterblast to respondent who had filed a civil suit against the applicant. Fourthly, the respondent has already prima-facie established the trademark numeral "1" as quite distinctive character to the goods in which the mark is registered. Fifthly, the respondent has discharged his burden before the advertisement of the trademark journal. Once the trademark is registered the registration of the trademark to be prima-facie evidence for its validity. Lastly, the relevant date claimed to be used has to be examined as a date of distinctiveness has provided under section 32.

26. After hearing arguments of the counsel for both the parties in detail as well as going through the written submissions submitted by the parties, we have made out a short crisp issues or crux of the matter for convenience our convenience that are paramount and necessary for adjudicating the case in hand, the brief issues in crux are mentioned to deal with the dispute as under:

"i). whether trademark numeral "1" inherently lacks distinctiveness

ii). whether a single letter or numeral mark can be registered"

iii). whether trademark numeral "1" is common, generic, descriptive and special used in the trade to designate to quality and grade."

27. In light of the above, we take up all three issues together, as all three issues as mentioned above are interconnected with each other, so we are taking up all three issues to together to decide the disputes in relation to the impugned trademark. To get in to precise issues, firstly, we have to see, what is definition of trademark, as per the Trademarks Act of 1999, the definition under section 2 (1) (m) expressly, says "mark" includes a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any combination thereof."

28. While simple reading of the definition section 2 (1) (m) shows that the mark includes signature, word, letter, numeral, but it nowhere says that single signature, word, letter, numeral, per se be register-able as mark, in our view normally, the combination of letters and numerals for trademark are considered as composite mark and such unique combination may qualify for registration as a composite trademark. The registration of such marks would give right only for the use of composite mark and not for separate integers per se, which are not register-able even as per section 9 of the trademarks act, the section 9 of the trademarks act is reproduced as under:

"The definition of trademark has to be read conjointly with the section 9. Of the Trademarks Act defines as under:

9. Absolute grounds for refusal of registration.-

(1) The trade marks -

(a) Which are devoid of any distinctive character, that is to say, not capable of distinguishing the good or services of one person from those of another person.

(b) Which consist exclusively of marks or indications which may serve in trade to designate the kind, quality, quantity, intended purpose, values, geographical origin or the time of production of the goods or rendering of the service or other characteristics of the goods or service.

(c) Which consist exclusively of marks or indications which have become customary in the current language or in the bona fide and established practices of the trade.

Shall not be registered:

Provided that a trade mark shall not be refused registration if before the date of application for registration it has acquired a distinctive character as a result of the use made of it or is a well-known trade mark.

1. A mark shall not be registered as a trade mark if-

(a) it is of such nature as to deceive the public or cause confusion.

(b) It contains or comprises of any matter likely to hurt the religious susceptibilities of any class of section of the citizens of India.

(c) It comprises or contains scandalous or obscene matter.

(d) Its use is prohibited under the Emblems and Names (Prevention of Improper Use) Act, 1950 (12 of 1950).

1. A mark shall not be registered as a trade mark if it consists exclusively of-

2. the shape of goods which results from the nature of the goods themselves.

Or

(a) the shape of good which is necessary to obtain a technical result, or

(b) the shape which gives substantial value of the goods."

29. The section 9(1) (a) (b) (c) lays ground for absolute refusal for registration of non-distinctive trademarks and this section clearly stresses the mark which is devoid of distinctive character or failed to distinguish the source goods of one from another of the product is barred for registration as trademark. In our considered opinion a section 9 not only talks about distinguishing of products but also lays down ingredients of distinctiveness, the "distinctiveness" of the products can be defined "where the products that identifies the one source of its origin and creates recollection in the mind of purchaser of its assured quality that prompts customer of buying it again and again and the said act of recurring purchase distinguishes the source goods of one from another is called "distinctiveness character of the product".

30. The section 9(1) (a) (b) (c) clearly stresses that "mark which may serve in trade to designate the kind, quality, quantity", wherein in context of present case, in our opinion the predominant depiction of mark numeral "1" indicates the kind, quality, quantity of the product. Further the applicant has annexed a list of hundreds trademarks in class 29, wherein many businesses entities are using numeral "1" as prefix or suffix as trademark for the edible oil products falls under class 29, firstly when hundreds of business entities using numeral "1" as prefix or suffix as trademark for similar products, due to wide usage, it becomes difficult for the customers to distinguish one product from another, secondly wide usage of trademark numeral "1" with prefix or suffix for the edible oil products by various business entities of the same trade indicates, the usage of numeral mark "1" as a established practice in the trade, so the exclusivity to the same mark cannot be granted to any individual or to any entity and the respondent cannot be allowed to claim exclusivity on a single numeral mark "1", which is inherently, lacks distinctiveness.

31. If we further look at the section 17 of the trademarks Act along with preceding section 9(1) (a) (b) (c), if we read section 17, which defines the effect of registration granted to the composite marks or parts of the mark that mark or part of mark contains "which is common to the trade or is otherwise of a non-distinctive character".; The section 17 (2) (ii) (b) is reproduced as under:

"17. Effect of registration of parts of a mark.--

(1) When a trade mark consists of several matters, its registration shall confer on the proprietor exclusive right to the use of the trade mark taken as a whole.

(2) Not withstanding anything contained in sub-section (1), when a trade mark--

(a) contains any part--

(i) Which is not the subject of a separate application by the proprietor for registration as a trade mark; or

(ii) Which is not separately registered by the proprietor as a trade mark; or

(b) contains any matter which is common to the trade or is otherwise of a non-distinctive character, the registration thereof shall not confer any exclusive right in the matter forming only a part of the whole of the trade mark so registered."

32. The section 17(2) (ii) (b) of the Trademarks Act clearly says, if a composite mark contains thing "which is common to the trade or is otherwise of a non-distinctive character", the registration of the mark shall not confer any exclusive right in the matter even though the applied mark is a composite mark. The section 17 (2) (ii) (b) clearly bars registration of the mark, that contains or consist of non-distinctive character in part or in whole.

33. The trademark registry normally grants registration to single letters or numerals per se marks by limiting applicant rights only for the use of composite mark and not for separate integers per se but the search list submitted to us by the applicant consists of 55 pages, contains composite trademarks similar to impugned trademarks in hundreds pending, registered or refused marks that contains numeral with prefix or suffix, wherein disclaimer or no disclaimer has been shown and further submitted another search list of marks that contains 8 pages consisting of hundreds of marks of numeral 1 in single integer or with prefix or suffix.

34. Before taking up the applicant search list placed before us as evidence of trade mark or trade name or get up legitimately used by other persons, in to our consideration, we have to read section 144 of the trademarks Act is stated as under:

"144. Trade usages, etc. to be taken into consideration.-

In any proceeding relating to a trade mark, the tribunal shall admit evidence of the usages of the trade concerned and of any relevant trade mark or trade name or get up legitimately used by other persons."
35. In view of the section 144 of the Trade Marks Act, the legislature casts abundant duty on this tribunal/court to consider, the search list as evidence submitted by the applicant to us containing composite trademarks similar to impugned trademarks used by others. The list consisting of 55 pages showing almost hundreds of marks pending registered or refused marks contains numeral with prefix or suffix being used by other parties, which clearly establishes that the trademark registry is not following nor has adopted uniform practice in processing application of such marks and in many cases the trademark office has granted registration to single letters or numerals per se or part of composite mark with or without disclaimer and in the instant case of the respondent the impugned mark has been granted without disclaimer on single integer, in case of others, the trademark registry has granted registration to all sundry without due process of law or proper scrutiny thereby making mark numeral "1" with prefix or suffix as common to the trade.

36. The grant of numerous registrations certificate to all sundries for the mark numeral "1" with prefix or suffix by the trademark registry has been without following uniform process is certainly contrary to trademark law the certain registrations granted to some business entities including the respondent herein certainly contravenes the section 9 and section 17 of the Trademarks Act 1999.

37. While going through the records qua used claimed by the respondent, we have found that the respondent has not submitted sales bills from the year 1981 but has submitted from the year 2001 to 2013, whereas the respondent has claimed the use of the said trademark numeral "1" from the year 1981. The respondent has not filed any advertisements and other documents which prove the use of the trademark by the respondent.

38. The respondent has manipulated and fabricated the sales bills submitted before this court therefore, the sales bills submitted by the respondent do not inspire confidence and the writing pattern and style on every single bill is neat and identical. A simple cursory glance across all these invoices raises the suspicion that the said bills have been prepared in one go by one person. So it is impossible for us to believe that the product of the respondent has been sold at the same price from the years 2001 till 2013.

39. Further the respondent himself admitted in his counterstatement that the respondent been granted AGMARK (The Agricultural Produce (Grading and Marketing) Act of 1938) Certificate No. A/1 No. 006463 of 15th November 2000 for the mark numeral "1" and has been using since then. In our opinion the AGMARK certification is mandatory for selling any edible oil and non submission of bills prior to 2000 does not arise. In view of the AGMARK Certificate No. A/1 No. 006463 was granted to the respondent only on of 15th November 2000.

40. The respondent has filed trademark application on 9th of July 1999 claiming use from the year 1981, the registration certificate under the said application was granted in the year 2005. The respondent was granted AGMARK 15th November 2000. It clearly establishes that respondent has submitted wrong/false information of use to the trademark registry and therefore his statement of long use qua impugned mark from the year 1981 and time gap between 9th of July 1999 and 15th November 2000, is of 15 months. The use of the impugned mark by the respondent is minuscule and mere 15 months use of the impugned mark for edible oil specially when the mark trademark numeral "1" is used by all in same trade for edible oils as common abbreviation.

41. Keeping in view of the facts and circumstances as narrated above, the use claimed by the respondent is farfetched, exaggerated and does not inspire our confidence. The respondent has submitted that pending bills are only from the year 2000 though the respondent did not submit the bills from the year 1981. The invoices/sales bills submitted by the respondent raises the suspicions that the said bills have been prepared in one go by one person. The bills submitted by the respondent does not show that the respondent has able to establish distinctiveness or secondary distinctiveness qua his impugned trademark nor respondent has able to prove that the respondent has been using the mark since 1981.

42. We are agree with the contentions of the applicant that a impugned single numeral mark cannot have exclusivity tag with it as there are hundreds of other users who are using numeral T for the same goods and some of the users are even prior to the respondent use. In our view, the respondent has failed to qualify the test of distinctive, as the respondent has not able to show continuous use of the mark, which makes the respondent mark as a distinctive mark or has achieved any secondary distinctiveness. Therefore, the respondent cannot be allowed to ouster others from using the same with prefix or suffix with the trademark. The respondent has failed to establish distinctiveness of his trademark numeral "1" qua the edible oil, and does not inspire our confidence.

43. The applicant has relied on several decisions in support of his contentions, most of the decisions relied by the applicant are "No one can claim exclusive or proprietary rights over descriptive, laudatory, publici-juris words". We agree with the principles laid down in the decisions and would like to place reliance on one of the decisions of the Delhi High Court Radico Ehaitan Limited v. Carlsberg India Private Limited (Supra), wherein the Hon'ble High Court has held that "Unless the prominent feature of the marks is proved to be prima facie enjoying high degree of distinctiveness which may become heart and soul of particular trademark such kind of monopoly cannot be accorded to the same. This may not hold true in the case of single letter of numeral like '8' which has been extensively used by the number of major players selling alcohol and is a requirement of the trade as a practice denoting strength".

44. Keeping all these valuable principles lay down by the Hon'ble High Court as discussed in preceding paragraphs, we are in our considered view that the respondent has not able to substantiate the contentions with any cogent documentary evidences related to continuous use of the mark, thus has failed to qualify the test of distinctiveness nor has achieved secondary distinctiveness qua the impugned trademark, which makes the respondent mark as a distinctive mark qua others.

45. We have given our thoughtful consideration to the contentions of both the parties and have further gone through with the material available on record including of other users search list as submitted by the applicant containing composite trademarks similar to impugned trademarks. In our considered opinion, the respondent has failed in all issues No. 1 to 3. For the reasons expressed herein above, we hold that the rectification application No. ORA/119/2014/TM/DEL is allowed in favour of the applicant. We direct the Registrar of Trademarks at Delhi to cancel and remove the impugned trademark registration having trademark numeral "1" bearing registration certificates No. 864841 in class 29, from the trademark register within 4 weeks from the date of receipt of the order. No order as to costs.