Hamdard National Foundation (India) v Hamdard Laboratories (Waqf) Pakistan

Hamdard National Foundation (India) opposed the registration of the trade mark application number 1961747, "Hamdard Rooh Afza Inspired by Nature and device," by Hamdard Laboratories (Waqf) Pakistan. The opposition was heard by Louise Tuohy, Hearing Officer and Delegate of the Registrar of Trade Marks. The opponent bore the onus of establishing at least one ground of opposition, with the standard of proof being the balance of probabilities.

The primary legal issue before the Hearing Officer was whether the applicant's trade mark should be rejected under section 44 of the *Trade Marks Act* (the Act) on the grounds that it was substantially identical with, or deceptively similar to, a registered trade mark or a trade mark for which registration was being sought by another person, in respect of similar goods or closely related services. The Hearing Officer also considered the exceptions to rejection provided by subsections 44(3) and 44(4) of the Act, relating to honest concurrent use or continuous use prior to the priority date of the other trade mark.

The Hearing Officer found that the opponent had met its onus in establishing the ground of opposition under section 44 of the Act. Consequently, the Hearing Officer refused to register the trade mark. The Hearing Officer directed that registration would not occur until any appeal was withdrawn or discontinued, and otherwise ordered that the disposition of the application be in accordance with the Court's order or direction. Costs were awarded against the applicant.