Read the following case and answer the questions given at the end : One Shri Rama Krishna Bahadur the appellant in the present case, trading as M/s Om Perfumery, Makerganj, Mahatma Gandhi Road, Bhubaneshwar made an appli

Read the following case and answer the questions given at the end : One Shri Rama Krishna Bahadur the appellant in the present case, trading as M/s Om Perfumery, Makerganj, Mahatma Gandhi Road, Bhubaneshwar made an application to the Registrar of Trade Marks to register a trade mark by Digitally signed by name "RAMAYAN" with the device of crown in Class 3 in respect on incense sticks (agarbattis, dhoops) and perfumeries etc. One Shri Laxman Singh the respondent herein, was a dealer for the sale of the products of the appellant and was also trading as M/s Badshah Industries, Shitkohra, Purohit Colony, Bhubaneshwar. The respondent herein filed a Notice of opposition to oppose the registration of aforesaid trade mark under Sections 9, 11(a), 11(b), 11(e), 12(1), 12(3) and 18(1) of the Trademarks Act, 1999 claiming that the impugned mark, being the name of a religious book, cannot become the subject matter of monopoly for an individual. The appellant was in the business of manufacturing, trading and marketing of incense sticks since 1981 and the respondent was a dealer of the appellant. The goods under the trade mark "RAMAYAN" have been advertised by him through various means including the publication of cautionary notices in newspapers, extensive use, wide advertisement and the excellent quality of the products. The trademark "RAMAYAN and the carton in which the products are sold has become distinctive in such a manner that use of the same or similar trademark or carton by any other person will cause confusion and deception in the trade and amongst the public. The sale was done through a network of dealers and distributors. The respondent was one of the dealers of the appellant. After the termination of dealership, the respondent started selling incense sticks under the trademark "RAMAYAN" written in the same style and manner. The Assistant Registrar of Trade Marks, after holding that the impugned trade mark consists of device of crown and the word "RAMAYAN" is capable of distinguishing the goods and is not included in the list of marks not registrable under the Act, by order dated 31st March, 2004, dismissed the application filed by the respondent. Taking in to account the trade mark, being the name of a religious book, cannot be a sufficient ground for refusal of registration under Section 9(2) of the Act and is not based on evidence on record that the feelings of any section of the Hindus having been hurt by its use in relation to incense sticks. Further it was submitted that the Assistant Registrar of Trade Marks rightly held that the impugned trade mark consists of device of crown and the word is capable of distinguishing the goods of the appellant and the trade mark is not included in the list of marks not registrable under the Act. It was further claimed that it has already been proved before the Court of Assistant Registrar that the appellant was using the trade mark since 1981 and hence, is the prior user in comparison to the respondent. Being aggrieved by the other passed by the Assistant Registrar, the respondent preferred an appeal before the Intellectual Property Appellate Board. On January 10th, 2005 the Board, set aside the other passed by the Assistant Registrar of Trade Marks (31-03-2004). Aggrieved by the other passed by the IPAB (10-01-2005), the appellant has filed this appeal by way of special leave before the Supreme Court of India. Appellant contended that it was unfortunate the Board, misconstrued the observations of the Standing Committee in the Eighth Report on the Trade Marks Bill, 1993. It was also contended that the Board erred in law while setting aside the judgement of the Assistant Registrar of Trade Marks while holding adversely about its distinctiveness, the mark causing deception and not having been used in an honest manner. The respondent contended that the impugned mark, being name of a religious book, cannot become the subject matter of monopoly for an individual. He further contended that the mark "RAMAYAN" is not a distinctive mark and is devoid of any distinctive character. The mark is capable of distinguishing the goods of one person from those of another. It was also contended that the mark "RAMAYAN" is not registrable since it is name of a famous and well known religious book. It was also claimed that more than 20 traders in Patna and many more are using the trade mark and thus it has become public juris. It was further submitted that the impugned mark is identical with the respondent's mark "BADSHAH RAMAYAN" which is pending registration and the impugned registration will cause harassment to other traders and purchasing public would be bound to be confused and deceived. He further added that his application for the registration of the same trade mark claiming user since 5th November, 1986 is pending for registration. The court observed that the word "RAMAYAN" represents the title of a book written by Maharishi Valmiki and is considered to be a religious book of the Hindus in our country. Thus, using exclusive name of the book "RAMAYAN", for getting it registered as a trade mark for any commodity could not be permissible under the Act. If any other word is added as suffix or prefix to the word "RAMAYAN" and the alphabets or design or length of the words are same as of the word "RAMAYAN" then the word "RAMAYAN" may lose its significance as a religious book and it may be considered for registration as a trade mark. However, in the present case, the court finds that the appellant had applied for registration of the word "RAMAYAN" as a trade mark. It also finds that in the photographs, after adding "OM's" to the word "RAMAYAN", at the top and in between "OM's and RAMAYAN", the sentence, "Three Top Class Aromatic Fragrance", is also written. Thus, it is not a case that the appellant is seeking the registration of the word "OM'S RAMAYAN" as a trade mark. Further, from the photographs, it also find that the photographs of Lord Rama, Sita and Lakshman are also shown in the label which is a clear indication that the appellant is taking advantage of the Gods and Goddesses which is otherwise not permitted. There are many holy and religious books like Quran, Bible, Guru Granth Sahib, Ramayan etc., to name a few. The answer to the question as to whether any person can claim the name of a holy or religious book as a trade mark for his goods or services marketed by him is clear 'NO'. In relation to the artistic work said to have been created, there is not doubt that both the marks are identical in design, colour, scheme and the reproduction of photographs is in such a manner that an ordinary buyer would reasonably come to a mistaken conclusion that the article covered by one brand can be the article covered by the other. Both the parties have claimed to be manufacturing units engaged in certain goods. The respondent claimed that though he had been in the business since 1980, he had developed and published the artistic work in 1986 and has also been using the mark as a trademark and claiming use since 1986 whereas the appellant herein claimed use of the trademark since 1987. However, by filing an application to the concerned authority, the appellant has claimed the use since 1981. Further, in various pleadings in the Title Suits filed by the respondent herein, the appellant herein has admitted the use and publication of the artistic mark of the respondent before the date of claim of the first use by the appellant, that is, 1987. From these facts, it is clear that the respondent herein was using the artistic mark earlier in point of time to that of the appellant herein. In view of the foregoing discussion, the Supreme Court of India do not find any irregularity in the order passed by the Intellectual Property Appellate Board consequently, the appeal fails and is accordingly dismissed. Questions: (d) Discuss in brief various kinds of mark and mention the provisions in relation to registered user under the Trademarks Act, 1999.