Raghbir Singh, Vice-Chairman
1. These two appeals filed as TMA 6 and TMA 7 of 1998 in the High Court of Judicature at Madras have been transferred to this Board in terms of Section 100 of the Trade Marks Act, 1999 and have been numbered as TA/16/2003 and TA/17/2003.
2. Two applications were filed by respondent No. 1 for registration of device of "BUNNY" alone under application No. 471287 and the words 'BUNNY BRAND' alongwith the device of 'BUNNY' under application No. 471288 in respect of fireworks in class 13. The appellants filed their opposition in relation to both the applications on the following grounds:-
(a) That the opponents are registered proprietors of device of bunny under No. 291606 and 322428 in respect of non-medicated confectioneries, bread, biscuits (not for animals), cakes, etc. in class 30 and their application No. 495415 in class 13 has been accepted for registration and is about to be advertised in the Trade Mark Journal;
(b) that since the rival marks are similar and the goods in question are the same and, or are of the same description, Section 12(1) of the Act acts as a bar to the registration of the impugned mark;
(c) that having regard to established use and reputation associated with opponents' mark 'BUNNY', the impugned application would lead the public to wonder whether it is also one of their marks and, therefore, the registration of the impugned mark is hit by Sections 11 (a), (b) and (e) of the Act;
(d) that applicants were fully aware of the opponents' 'BUNNY' mark and, therefore, the adoption by them is dishonest and as such the impugned mark is neither adopted to distinguish nor capable of distinguishing the goods of the applicant under Section 9 of the Act;
(e) that the applicants are not and never were the proprietors of the mark within the meaning of Section 18(1) of the Act;
(f) that opponents have also filed Suit No. C.S. 836 of 1989 against the applicants in the High Court, Madras;
(g) that this is a fit case for exercise of Registrar's discretion adversely to applicants under Section 18(4) of the Act;
(h) in view of the foregoing registration of applicant's mark would be contrary to Sections 9, 11(a), 11(e), 12(1), 18(1) and 18(4) of the Act.
3. The Assistant Registrar heard both the applications together and decided on all grounds in the matter in favour of the applicant and ordered that both the applications shall proceed for registration. However, while dealing with the issue under Section 12(1) of the Act, he was of the view that the marks applied for are identical with or deceptively similar to the registered trade mark of the opponent but the goods in respect of the rival marks are totally different in nature, composition, character and usage. Thus, in conclusion, he held the matter under Section 12(1) also in favour of the applicant.
4. The principal issues raised in the appeal are that the Assistant Registrar erred in holding that the registration is permissible under Section 12(1) of the Act since the appellant had also applied for registration as a defensive trade mark in all the 34 classes. The findings of the Assistant Registrar under Section 11(a) of the Act are also equally unsustainable since the appellant's mark had attained long-user and great popularity and reputation beyond question.
5. Learned counsel for the appellant argued that in the instant case the provisions of the Trade Marks Act, 1999 should be applicable and thus the provisions of the Trade and Merchandise Marks Act, 1958 should not be applicable. His argument in this regard is that the general principle of interpretation is that unless the new Act provides for the applicability of the repealed Act, the provisions of the new legislation will be applicable to all the proceedings at the commencement of the new Act. Sub-section (4) of Section 159 of the Trade Marks Act, 1999 provides that any legal proceedings pending in any court at the commencement of the Act may be continued in that court as if this Act had not been passed. It clearly indicates that the Legislative intention is to make an exception only in relation to legal proceedings pending in courts and not in the other fora. Had the Legislature intended that the matters pending before the Appellate Board should also be continued as per provisions of the old Act, the Legislature would have provided "any legal proceedings pending in any court or Appellate Board". Thus, he concluded that matters which are pending in the courts in the nature of infringement or passing off suits shall continue to be governed under the provisions of the old Act and the appeal and rectification cases transferred to the Appellate Board shall be dealt with in accordance with the provisions of the new Act.
6. For the purpose of convenience, Section 159 of the Trade Marks Act, 1999 is reproduced herebelow:
"Repeal and Savings: (1) The Trade and Merchandise Marks Act, 1958 (43 of 1958) is hereby repealed.
(2) Without prejudice to the provisions contained in the General Clauses Act, 1897 (10 of 1897), with respect to repeals, any notification, rule, order, requirement, registration, certificate, notice, decision, determination, direction, approval, authorisation, consent, application, request or thing made, issued, given or done under the Trade and Merchandise Marks Act, 1958 (43 of 1958) shall, if in force at the commencement of this Act, continue to be in force and have effect as if made, issued, given or done under the corresponding provisions of this Act.
(3) The provisions of this Act shall apply to any application for registration of a trade mark pending at the commencement of this Act and to any proceedings consequent thereon and to any registration granted in pursuance thereof.
(4) Subject to the provisions of Section 100 and notwithstanding anything contained in any other provision of this Act, any legal proceedings pending in any court at the commencement of this Act may be continued in that courts as if this Act had not been passed.
(5) Notwithstanding anything contained in this Act, where a particular use of a registered trade mark is not an infringement of a trade mark registered before the commencement of this Act, then, the continued use of that mark shall not be an infringement under this Act.
(6) Notwithstanding anything contained in Sub-section (2), the date of expiration of registration of a trade mark registered before the commencement of this Act shall be the date immediately after the period of seven years for which it was registered or renewed:
Provided that the registration of a defensive trade mark referred to in Section 47 of the Trade and Merchandise Marks Act, 1958 (43 of 1958), shall cease to have effect on the date immediately after the expiry of five years of such commencement or after the expiry of the period for which it was registered or renewed, whichever is earlier".
In order to understand the implications of the provisions of Section 159, it shall be better to divide it into two segments. Sub-section (1) is in the nature of repealing provision and Sub-sections (2) to Sub-section (6) are in the nature of saving provisions. In absence of Sub-section (2) to Sub-section (6), the provisions of Section 6 of the General Clauses Act, 1897 in undiluted form would have been applicable. Since the provisions contained in Sub-sections (2) to (6) of Section 159 of the Trade and Merchandise Marks Act, 1958 provide for certain deviations to the general provisions of Section 6 of the General Clauses Act, 1897, its applicability to that extent has been excluded. Sub-section (2) makes it abundantly clear that the departure made through that sub-section shall be restricted to the extent provided therein and shall not affect the general provisions relating to repeals or effect of repeals under the General Clauses Act, 1897. Sub-section (3) makes it clear that in relation to all applications for registration of trade marks pending at the commencement of the Trade Marks Act, 1999, provisions of that Act shall only apply. Sub-section (4) of Section 159 in the Trade Marks Act, 1999 is similar to provisions contained in Sub-section (4) of Section 136 of the Trade and Merchandise Marks Act, 1958. Section 136 of the Trade and Merchandise Marks Act, 1958 made provisions for the repeal of earlier two Acts, namely, the Indian Merchandise Marks Act, 1889 and the Trade Marks Act, 1940. Section 135 of the Trade and Merchandise Marks Act, 1958 made amendments in the Indian Penal Code, the Specific Relief Act, 1877, the Sea Customs Act, 1878 and the Code of Criminal Procedure, 1898. The only additionally in the language of Sub-section (4) of Section 159 in the 1999 Act vis-a-vis its counterpart in Sub-section (4) of Section 136 of the 1958 Act is that the provisions of that sub-section are also subject to the provisions of Section 100 of Act.
Section 100 of the Trade Marks Act, 1999 provides as under:-
"Transfer of pending proceedings to Appellate Board. -All cases of appeals against any order or decision of the Registrar and all cases pertaining to rectification of register, pending before any High Court, shall be transferred to the Appellate Board from the date as notified by the Central Government in the Official Gazette and the Appellate Board may proceed with the matter either de novo or from the stage it was so transferred."
By virtue of the above provision, the Central Government, when it deems proper, may notify that from a particular date, the legal proceedings in matter of cases of appeals against any order or decision of the Registrar and all cases pertaining to rectification of register, pending before any High Court, shall be transferred to the Appellate Board.
7. It shall be appropriate to reproduce the provisions of Sub-section (3) of Section 1 of the Trade Marks Act, 1999 making provisions for the commencement of the Act:-
"1 (1) XXXXX
(3) It shall come into force on such date as the Central Government, may, by notification in the Official Gazette, appoint:
Provided that different dates may be appointed for different provisions of this Act, and any reference in any such provision to the commencement of this Act shall be construed as a reference to the coming into force of that provision": Proviso to Sub-section (3) of Section 1 provides that for bringing into force the provisions of the Act different dates may be appointed for different provisions of the Act as the Central Government may choose it appropriate. The implication of the Legislative mandate is clear that, in a particular situation, the Central Government, if it deems so appropriate, may bring all except the provisions of the Intellectual Property Appellate Board into force and thus defer the bringing into force of provisions relating to the establishment of the Intellectual Property Appellate Board. The Legislature in view of the complexities of the Legislation and infrastructure needed to bring that into force, made such an enabling provision to bring the Act into force in parts even. Further, even having brought into force all the provisions of the Act and also establishing the Intellectual Property Appellate Board simultaneously, the Central Government under Section 100 of the Trade Marks Act, 1999 could have deferred or even abandoned its decision to transfer the pending proceedings to the Appellate Board. Sub-section (4) of Section 159 has been drafted to harmonise it with the commencement provisions contained in Sub-section (3) of Section 1 and provisions relating to pending proceedings under Section 100. "Subject to the provisions of sub-section" in Sub-section (4) of Section 159 is with a view to provide that all appeal and rectification proceedings pending in courts, (in this case only the High Courts) shall continue in those courts so long a notification under Section 100 is not issued by the Central Government. With the issuance of such a notification at any stage which may synchronise with the date of commencement of the Act and the establishment of the Intellectual Property Appellate Board or may not, such cases shall stand transferred to the Appellate Board forthwith. Under the Trade and Merchandise Marks Act, 1958, the High Courts were the Appellate Forum as against the decisions of the Registrar and were courts of original jurisdiction in matters of rectification. Under the Trade Marks Act, 1999, these jurisdictions, in substitution, have been conferred upon the Intellectual Property Appellate Board. Thus, the Intellectual Property Appellate Board is a Judicial Forum which has stepped into the shoes of the High Courts. So long a notification under Section 100 of the Trade Marks Act, 1999 is not issued, the High Courts shall continue to exercise the jurisdiction in these matters. With the issuance of such a notification which may be at any time after the commencement of the Act not necessarily simultaneously with the commencement of the Act and on establishment of the Intellectual Property Appellate Board, the Appellate Board shall start exercising jurisdiction and the High Courts' shall cease to have the jurisdiction. In the scheme of things as explained above, it shall be fanciful to argue that so long the matter is before a High Court, a particular substantive law will be applicable and with the transfer of the matter to a parallel new judicial body, a different substantive law shall apply. It is also wrong to suggest that, had the Legislature intended that the Appellate Board shall deal with the cases in accordance with the provisions of the old Act, it would have specifically provided in Sub-section (4) of Section 159 that "any legal proceeding pending in any court or the Appellate Board at the commencement of this Act may be continued in that court or the Appellate Board as if this Act had not been passed". The argument runs contrary to the very scheme of the Trade Marks Act, 1999, and particularly the provisions of Section 100. At the commencement of the Trade Marks Act, 1999 legal proceedings relatable to appeal cases against the decisions of the Registrar and the rectification applications shall only be pending before the High Courts. The Intellectual Property Appellate Board being a new institution which in any case cannot be brought into being before the commencement of the Act, there ought not to be any legal proceedings pending before it on the date of commencement of the Act. In other words, the Intellectual Property Appellate Board being a product of the Trade Marks Act, 1999 it is unimaginable to think that it could have existed immediately before the date of commencement of the Act.
8. Legislative scheme is very clear in this matter. The cut off date is the date of commencement under Section 1(3) of the Act. Relevant notification bringing the provisions of the Act including provisions relating to the establishment of the Intellectual Property Appellate Board having been issued, Intellectual Property Appellate Board, and not the High Courts, shall have jurisdiction from that date in all appeals against the decisions of the Registrar and in matter of rectification applications. Insofar as the pre-commencement appeals and applications are concerned, Sub-section (4) of Section 159 is clear that while enunciating the general principles that all pre-commencement legal proceedings pending in any court shall continue to be dealt by those courts as if the new Act had not been passed and thus the old Act is continuing, the Legislature has made transitional provisions for smooth shiftover of appeal cases against the decisions of the Registrar and the rectification matters pending in the High Courts to the new substitute institution, namely, the Intellectual Property Appellate Board by empowering the Central Government under Section 100 to issue a proper notification for transferring these cases. For that reason, "subject to provisions of Section 100" in Sub-section (4) is a buckle which fastens Sub-section (4) to Section 159 with Section 100 with a view to provide linkage of the High Courts with its successor body, the Appellate Board. In substance, Sub-section (4) of Section 159 provides that as from the date of notification under Section 100, the Appellate Board shall step into the shoes of the High Courts with no change in the applicability of substantive law which shall continue to be the provisions of the Trade and Merchandise Marks Act, 1958.
9. The learned counsel has referred to certain decisions in support of his contention that the provisions of the Trade Marks Act, 1999 shall apply in the instant matter and not that of the Trade and Merchandise Marks Act, 1958. Paras 22, 23 and 24 of Gajraj Singh and Ors. v. State Transport Appellate Tribunal, (1997) 1 SCC 650 relied upon by him just explain the obvious provisions of Section 6 of the General Clauses Act, 1897 upon repeal and re-enactment of laws. Learned counsel drew our attention to paras 12, 13 and 18 of V. Karnal Durai v. District Collector, Tuticorin, (1999) 1 SCC 475. In the said case, issues related to amendment of concerned rules during the pendency of appeal and it was held that the amended ruled shall be applicable. We are concerned with the amendment of a principal Legislations. The general principles of Section 6 of the General Clauses Act, 1897 are applicable to the provision of principal Legislations and not subordinate Legislation. Again, the applicability of Section 6 is subject to any contrary provisions, if any, made while repealing the law. Sub-section (4) of Section 159 of the Trade Marks Act, 1999 specifically provides that all legal proceedings pending in any court at the commencement of the Act may be continued in that court as if the Trade Marks Act, 1999 had not been passed which necessarily means as per provisions of the Trade and Merchandise Marks Act, 1958. Sub-section (4) of Section 159, read with Section 100, further provides that the legal proceedings relating to specified matter in Section 100 shall be transferred to Intellectual Property Appellate Board from a date notified by the Central Government, which shall necessarily deal with those matter as per the same law had the said notification not been issued as discussed earlier. Thus, the instant case which relates to amendments in subordinate Legislation in no way helps the appellant. Shiv Shakti Coop-Housing Society v. Swaraj Developers, (2003) 6 SCC 659 canvassed by learned counsel lays down that if by a statutory change the mode of procedure is altered, the parties are to proceed according to the altered mode, without exception, unless there is a different stipulation. In the instant case, learned counsel is arguing for the applicability of substantive law. Secondly, the Legislature has clearly spelled out that the old law shall apply whether the matter continues with a court or the same is transferred to the Intellectual Property Appellate Board under Section 100 of the Trade Marks Act, 1999. The last in this series of the cases which the learned counsel referred to is Qudrat Ullah v. Municipal Board, Bareilly (1974) 1 SCC 202 where in para 27, the Supreme Court has laid down that Section 6 of the UP. General Clauses Act, 1904 (parallel of Section 6 of the General Clauses Act, 1897) does not justify anything larger or for any time longer than the provisions of the impugned Act confers or lasts. In the instant matter also the proposition has been unambiguously stated in Section 159(4) that the proceedings in the court or the Intellectual Property Appellate Board, as the case may be, are to be conducted as per the provisions of the Trade and Merchandise Marks Act, 1958. Thus we hold that in the instant case the provisions of the Trade and Merchandise Marks Act, 1958 shall apply.
10. We shall now take up the substantive matter under the appeal, that is, decision of the Registrar allowing registration of the marks applied for. The learned counsel for the appellant argued that its trade mark which is the caricature or device of 'Bunny' is a well known trade mark and is also its house mark. Appellant has spent a huge sum of amount upon its publicity etc. It is using the mark from 1970 and for that purpose relevant certificate under the trade mark and copyright have been produced and the mark of the respondent is nothing but slavish reproduction of the appellant's mark. The respondent's trade mark is proposed to be used trade mark as from 23.4.1987. The additional documents produced by the first respondent now cannot entitle them right of distinctiveness on the basis of prior user. Thus, their mark is not distinctive under the Trade and Merchandise Marks Act, 1958. The learned Assistant Registrar having held that the impugned marks are identical with the mark of the appellant should have refused registration under Section 9 of the Act. The learned Registrar having concluded that the rival marks prima facie is identical should have proceeded to reject the same under Section 12(1) of the Act, The learned counsel relied upon number of cases, namely, Daimler Benz v. Hybo Hindustan, AIR 1994 Delhi 239 (BENZ case), the Eastman Photographic Materials Co. Ltd. v. The John Griffiths Cycle Corporation, 15 RPC 105 (Kodak Case), Kamal Trading Co. v. Gillette U.K. Ltd., 1988 PTC 1 (7 'O' Clock case), Caterpillar Inc. v. Jorange and Anr., 1999 PTC 570 (Caterpillar case - Division Bench of madras High Court), Alfred Dunhill Ltd. v. Kartar Singh Makkar and Ors., 1999 PTC 294 (Dunhill case) and N.R. Dongre v. Whirpool Corp. 1996 PTC 476 (Whirpool case). It was submitted by the learned counsel for the appellant that the learned Assistant Registrar having identified the contentions of opposition raised under Sections 11 (a), (b) and (e) of the Act in the impugned order proceeded to consider the issues in the proceedings only under Sections 9, 11(a), 11(e) and 12(1), 18(1) of the Act. Thus, he omitted to discuss the issues relating to Section 11(b) of the Act. Having held The rival marks, prima fade, appear to be identical, it does not require any interpretation or analysis to come to such conclusion", the learned Assistant Registrar ought to have accepted the grounds of opposition raised by the appellant under Section 11(b) and (e) of the Act. Having held that both the marks are identical and similar, the learned Assistant Registrar grossly erred in not considering that the appellant's trade mark is well known mark and also did not consider the greater probability and increased possibility of confusion and deception about the origin of the goods. The Assistant Registrar ought to have considered the volume of business of the appellant. In view of the contravention of the provisions of the Copyrights Act, 1957, the provisions under Section 11(e) of the Trade and Merchandise Marks Act, 1958 are attracted and the Registrar should have accordingly refused the registration. In view of the above, respondent cannot claim proprietorship under Section 18(1) of the Trade and Merchandise Marks Act, 1958 and thus leaving no scope for exercise of discretion under Section 18(4) of the Act by the Assistant Registrar. The learned counsel also mentioned about the application filed by Warner Brothers in India under No. 271170 having been treated as withdrawn consequent upon their opposition to its trade mark. The learned counsel also put reliance upon the De Cordova case (1951) 68 RPC 103 (PC), p 106 and contended that any untoward incident that may happen due to the dangerous mishandling of fireworks which are shown to be produced by the first respondent and sold in the market totally in disregard of the governing statutory rules may throw up awkward situations resulting in erosion in the credible image of the appellant's well known mark Bunny Device.
11. The learned counsel for the respondent put reliance upon the Supreme Court judgment in Vishnu Das v. Vazir Sultan Tobacco Company Limited, AIR 1996 SC 2275 (Charminar case) wherein the Supreme Court has held that if a trader or manufacturer actually trades in or manufactures only one or some of the articles coming under a broad classification and such trader or manufacturer has no bona fide intention to trade in or manufacture other goods or articles which also fall under the said broad classification, such trader or manufacturer should not be permitted to enjoy monopoly in respect of all the articles which may come under such broad classification. Here under the umbrella of "well known trade mark", the appellant seeks to bar the entry of others even in unrelated areas. He submitted that the 'Bunny' is, as per New Lexicon Webster Dictionary of English Language 1988 edition, 'a child's name for a rabbit'. He argued that animals and artistic representation of animals have always fascinated children and adult alike. Many of the animals have inspired creation of cartoon characters which have gained immense popularity world over. Such characters include Tom (Ct), Jerry. (Muse), Bugs Bunny (Rabbit), Donald duck (Duck), Mickey Mouse (Mouse) and so on. It is equally a common practice in trade to adopt the device of animals as business logo and word as part of their trade mark. It is a common trade usage amongst the manufacturers of crackers / fireworks to use the animals as trade mark, such like, squirrel, peacock, tiger, crab, lion, parrot, kuil, maina, camel cock etc. He also drew our attention to the said devices in the documents presented by him in his type set. He put reliance upon Section 122 of the Trade and Merchandise Marks Act, 1958 wherein usages of the trade concerned and of any relevant trade mark or trade name or get up legitimately used by other persons are recognised for the purpose of admission of evidence. Thus he argued that the appellant is not the only trader who has adopted the Bunny device as a part of its trade mark. He drew our attention to the documents filed by him wherein he has submitted that Bunny is a device having been used by other traders in respect of other goods which includes Duracell batteries, Chandamama magazine, Funny Bunny infant goods, Rabbit brand lungis, Playboy magazine, Bugs Bunny cartoons, Thermoplast industry as well as in service industry such as Vaibhav Water World. The appellant indulged in questionable means in order to sustain his opposition in the present case by applying for registration of the bunny trade mark in class 13 vide application No. 495415 long after the first respondent's application numbers 471286 and 471728. Thus the appellant cannot seek rejection of the first respondent's trade mark applications on the basis of its later application. Appellant's above mentioned application 495415 has been rejected by the trade mark registry by order dated 31.05.04. The learned counsel claimed or applicability of principles of estoppels against the appellant for its having raised the contention that first respondent's mark is neither distinctive nor is capable of distinguishing the products of the first respondent, hence prohibited under Section 9 of the Act, since he has applied and obtained the registration of the device of Bunny for his own goods. The word Bunny and Bunny device bear no direct reference to the character or quality of goods in question and are used in relation to fireworks in an entirely arbitrary sense without any element of suggestiveness. The learned counsel submitted that the Registrar has met all the objections under Sections 9, 11(a), 11(b), 11(e), 12(1) and 18(1) of the Act. The learned counsel also stated that one of the certificates produced by the appellant in the legal proceedings was challenged by the respondent resulting in cancellation of the said certificate and imposition of cost on the appellant for having resorted to improper means to obtain copyright certificate.
12. Appellant's case is broadly made out over the argument that its mark is a well known trade mark for which it has made an application for registration of mark as defensive mark under Section 47 of the Trade and Merchandise Marks Act, 1958. The cases relied upon by it are also of the nature relating to protection of marks, which are well known trade marks. Sine qua non for the protection of a well known trade mark is that it should not be laudatory or descriptive. It has to be an invented one, devoid of any signification, meaning or suggestiveness. Learned counsel for first respondent has established that Bunny is the name of an animal so much in currency in trade that producers or traders from different segments of industry or trade had been using the same for all kind of products, more particularly used or consumed by children. AIR 1994 Delhi 239 is concerned with mark 'BENZ'. It was one of the cases where with a view to preserve the exclusiveness of the mark for the motor car, the Hon'ble single Judge entertained the argument from the defence that the mark is laudatory having been the name of a city in U.S.A. Defendant failed in supporting his claim by adducing evidence to buttress his claim. The court was thus concerned, with a view to arrive at a conclusion of a well known trade mark, to establish the non-laudatory and invented character of the mark. In the result it was held that 'BENZ' is an invented word. (1898) 15 RPC 105 begins in its headnote with that "the plaintiffs had invented and used the word "Kodak" in relation to cameras and related goods". 1988 PTC 1 (7 'O' clock) is a matter relating to a passing off appeal which hinges around the deceptive similarity issue relating to Section 11(a) of the Trade and Merchandise Marks Act, 1958. 1999 PTC 570 (Caterpillar case) followed the principle laid down in the Benz and 7'O' clock cases. Hence there is nothing in it which helps appellant. Similarly, 1999 PTC 294 (Dunhill case) associates exclusive association of the mark with the products of the petitioner and none else. 1999 PTC (16) Whirlpool case is also about the exclusive association of the mark to the products of the respondent. Bunny as a mark is under use by different producers and traders. It is not exclusively associated with the products of the appellant. Appellant has canvassed for De Cordova and other v. Vick Chemical Coy., (1951) 68 RPC 103 PC to support its exclusiveness of the mark. The issues involved in that case do not help the appellant. In that case "Vapo Rub" though being not invented but being descriptive of the goods, was registered as a mark It was an infringement and passing off action as against violation of that mark. In this regard it is significant to take note of the weightage to be given to assess the strength of a mark to raise it to the level of a "well known trade mark" as observed by the US Supreme Court in a recent case under the Federal Trademark Dilution Act. The US Supreme Court recorded a note of caution in Moseley v. V. Secret Catalogue Inc. (decided by the U.S. Supreme Court on 4.3.2003) that a successful action under the Federal Trademark Dilution Act requires proof of actual injury to the economic value of a famous mark, rather than a likelihood of dilution.
13. We find that the appellant has miserably failed in supporting its claim that its mark is a well known trade mark and as such it deservers to be vested with the exclusive monopolistic right about the marks relatable to the word 'BUNNY' and as such respondent No. 1 should be refused registration of the impugned marks. In view of the above, appeal stands dismissed with no order for costs.