ROYAL ORCHID HOTELS LTD v. REGISTRAR OF TRADE MARKS & ANR [IPAB]
OA/74 & 75/2009/TM/CH and M. P. Nos.125 & 126/2012
Decided on: 18/06/2013
The appellant had applied for the registration of two trademarks i.e. words “Royal Orchid” and “Royal Orchid Hotels” taken as a whole. The respondent is the owner of the registered trademark “Orchid”. The Registrar of Trademarks refused the registration of the two trademarks as sought by the appellant and hence the appellant had appealed against the order of the Registrar of Trademarks to the Intellectual Property Appellate Board.
Decision: Appeal allowed.
Here one mark is “Orchid” and the other mark is “Royal Orchid” or “Royal Orchid Hotels Limited”. The individual words are not distinctive by themselves, but the appellant does not claim exclusive right to the word “Orchid” or the word “Royal”. He seeks the registration of the words “Royal Orchid” and “Royal Orchid Hotels” taken as a whole. We are unable to see how the “Royal Orchid Hotels” is similar to “Orchid”. The Registrar clearly ignored the principle by tearing the word “Orchid” out the impugned mark as a whole and arrived at the conclusion that the adoption was dishonest. The respondent had totally ignored that the appellant had adopted Royal Orchid Hotels for his company’s name even before the respondent adopted the trade mark Orchid.
The respondent’s objections have to be rejected since if nothing else, the appellant’s company name had become Royal Orchid Hotels Limited in 1997 pursuant to a resolution dated 1996. The respondent, who claims user only from January, 1997 cannot plead that the appellant was imitating their name. When the mark is considered in its entirety, we are of the opinion that the “Royal Orchid Hotels Private Limited” and the “Orchid” cannot be confused. Further the respondent’s Orchid label is with the depiction of flower. The class of customers is of the high income group and there is no likelihood of confusion especially in the instant case where the mark relates to service. Even if the mark related to goods bought off the shelf, we doubt if, the word “Orchid” and the “Royal Orchid” will cause confusion. We are not concerned with consumer goods but with services rendered in the hotel industry. Therefore both on the ground of honesty of adoption and likelihood of confusion, we are of the opinion that the impugned order must be set aside and it is set aside.