IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 01.04.2025 CORAM THE HONOURABLE MR.JUSTICE SENTHILKUMAR RAMAMOORTHY OP(TM)/6/2025 1.Aquapump Industries Tudiyalur Post, Coimbatore 641 034 Rep by its Managing Partner Mr.Ramaswamy Kumaravelu 2.Aquasub Engineering Tudiyalur Post, Coimbatore 641 034 Rep by its Managing Partner Mr.Ramaswamy Kumaravelu ... Petitioners -vs- 1.Jotheeshwaran Nagaraj 1/21B, Ajantha Nagar, Jothi Colony West, Narasimhanaickem Palayam, Coimbatore 641 031. 2.The Registrar of Trade Marks, Office of the Trade Mark Registry, Intellectual Property Building, G.S.T. Road, Guindy, Chennai 600 032. ... Respondents 1/9 https://www.mhc.tn.gov.in/judis PRAYER: Original Petition (Trade Marks) is filed under Sections 47 and 57 of the Trade Marks Act, 1999, pleased to rectify / cancel the registration of Trade Mark JOTEXMA (DEVICE) under No.5639212 dated 07.10.2022 in Class 7 in the name of the first respondent granted by the second respondent. For Petitioners : Ms.Gladys Daniel for Mr.C.Daniel For Respondents : No Appearance for R2 R1 – Notice served on 18.03.2025 ********** ORDER By this petition, the petitioner seeks rectification of the register of trade marks by cancelling the registration relating to the following device mark: 2/9 https://www.mhc.tn.gov.in/judis which was registered as Trade Mark No.5639212 in class 7. 2. By order dated 04.02.2025, notice was issued to the respondents returnable on 04.03.2025, and private notice was permitted. After sending private notice, the petitioner has filed affidavit of service dated 26.02.2025. The returned postal cover bearing endorsement “refused” was enclosed with the said affidavit of service. After recording the aforesaid, order dated 04.03.2025 also recorded that the second respondent had been served through Court. Therefore, the Registry was directed to print the names of 3/9 https://www.mhc.tn.gov.in/judis the respondents in the cause list for the hearing on 25.03.2025. On 25.03.2025, the Registry was directed to place a note on the status of service of Court notice on the first defendant. At today's hearing, the Registry has placed such note on record. The note states that notice was served on the first respondent by the Central Nazir Section, District Court, Coimbatore on 18.03.2025 through the first respondent's father, V.Nagaraj. Proof of service has been annexed to the Registry's note. In these circumstances, the matter is proceeded with in the absence of the first respondent. 3. Learned counsel for the petitioners submits that the predecessor-in- interest of the petitioners adopted and used word and device marks containing the prominent feature 'TEXMO' and that registrations in respect thereof were obtained with effect from 21.05.1976 on 'proposed-to-be-used' basis. The registrations were in class 7 in relation to motors, jet pumps, centrifugal pumps, reciprocating pumps and the like. Learned counsel also points out that a separate registration for the word mark TEXMO was also obtained. By referring to the history set out in the legal use certificates, learned counsel submits that the title of the petitioners herein has been traced 4/9 https://www.mhc.tn.gov.in/judis therein. By referring to certificates issued by the Chartered Accountants, Sri Gopal and Co., learned counsel submits that turn over particulars for the first and second petitioners have been set out in the said certificates. For financial year 2023-24, she points out that the turn over of Aqua Pump Industries was Rs.19419.62 lakhs. The turn over of Aqua Sub Engineering for the same financial year was Rs.216308.61 lakhs. By referring to an article published in the Frontline magazine on 24.02.2006, learned counsel submits that the article refers to the 5 units of the group and the sale of 2.5 lakhs pumps per year. 4. Learned counsel next contends that the impugned mark is deceptively similar in as much as JO is written in a small font and TEXMA has been written in a larger font. She also points out that the impugned mark is applied in relation to motors and agricultural implements, which are clearly cognate goods. She also submits that the petitioners' goods are used substantially in agriculture and, therefore, the goods of the petitioners and the first respondent are used by the same class of consumers. For all these reasons, learned counsel submits that the entry relating to the impugned 5/9 https://www.mhc.tn.gov.in/judis mark was made without sufficient cause, and such entry is liable to be expunged. 5. The petitioners have placed on record multiple legal use certificates. These certificates cover both device and word marks in class 7. By way of illustration, reference may be made to Trade Mark No.2702780 for the word mark TEXMO in class 7. The description of goods mentions motors and pumps of various kinds. The history data set out in these legal use certificates traces the path leading to the acquisition of title by the petitioners herein. The turn-over particulars of the first and second petitioners for financial year 2023-24 disclose a turn over of about Rs.19419.62 lakhs and about Rs.216308.61 lakhs for the first and second petitioner, respectively. 6. The impugned registration is also in class 7. The description of goods covers motors, agricultural implements and other products. Although the mark is a device mark, it bears the word element JOTEXMA. As contended by learned counsel for the petitioners, TEXMA is prominent and 6/9 https://www.mhc.tn.gov.in/judis JO is in smaller font. Given the cognate nature of goods, the use of the impugned mark is likely to cause deception or confusion among the relevant section of public. The registration of the impugned mark is with effect from 07.10.2022. The above facts and circumstances lead to the conclusion that the entry relating to the impugned mark was made without sufficient cause and, therefore, such entry is liable to be expunged. 7. For reasons aforesaid, OP(TM)/6/2025 is allowed by directing the Registrar of Trade Marks to cancel the registration relating to Trade Mark No.5639212 in class 7 from the register of trade marks. This action shall be completed within four weeks from the date of receipt of a copy of this order. There shall be no order as to costs. 01.04.2025 rna Index : Yes / No Internet : Yes / No Neutral Citation: Yes / No 7/9 https://www.mhc.tn.gov.in/judis To The Registrar of Trade Marks, Office of the Trade Mark Registry, Intellectual Property Building, G.S.T. Road, Guindy, Chennai 600 032. 8/9 https://www.mhc.tn.gov.in/judis SENTHILKUMAR RAMAMOORTHY,J rna OP(TM)/6/2025 01.04.2025 9/9 https://www.mhc.tn.gov.in/judis