Sustainability of a combined suit for Trademark and Copyright

Sustainability of a combined suit for Trademark and Copyright

Ms. Thabitha Marion Varghese

Trademark is considered to be a crucial link in the chain of product differentiation activities through advertisements. Labels, logos, color combinations, shapes, names, numerals which are to be seen on wrappers, carry bags, cartons and other advertising devices are all subject matter of trademark protection which enables the consumer to identify the goods are distinct from that of others. The labels or stylized marks used as trademark may posses some artistic features which may qualify for copyright protection, besides trademark protection under the Copyright Act, 1957 under the category of original artistic work under Section13 of the Act. In such instances it is possible to seek relief for violation of trademark under copyright law, simultaneously with infringement and passing off action under trademark law. Hence we can say that protection of trademark used in advertising by copyright law is thus of importance. In a combined suit for trademark and copyright even if there is no sale of defendant’s goods within the jurisdiction, if the Court has jurisdiction under Section 62 of the Copyright Act, it is said to have jurisdiction to entertain a combined suit.

· In Brooke Bond vs. Balaji Tea[1], the Madras High Court held that where the copyright infringement emerges from the same bundle of facts for which the trademark and passing off actions emerge, then the trademark and passing off actions should be joined with the copyright action to avoid multiplicity of litigation even though the defendant does not sell his goods within the jurisdiction of the Court where the plaintiff’s have an option to file a suit for infringement of copyright under Section 62 of the Copyright Act.

· In Glaxo Operations vs. Ramam Bhaktha Hanuman Camphor Works[2] the plaintiff had claimed copyright in the printed matter of Glaxo cartons. The Court found that the defendant Ramam Bhaktha’s cartons were a reproduction of the material features of the Glaxo’s carton and the differences were too immaterial. The Court hence granted injunction for trademark as well as the copyright.

· In Hindustan Machines vs. Royal Electrical Appliances[3] the plaintiff had been using a distinctive logo script Maharaja, constituting an original artistic work within the meaning of Section 2(c) of the Copyright Act. The defendant adopted the trademark Royal Maharaja for mixer grinders along with the logo script which was a replica of the plaintiff’s mark. The Court passed an injunction order restraining the defendants from using the trademark ‘Maharaja’ and also the logo script which was identical to that of the plaintiff.

· In the case of Burroughs Wellcome (India) vs. Unisole Pvt. Ltd.,[4] the plaintiff was the owner of trademark ‘Septran’ for antibiotic tablets and had a copyright in the photographs of carton, labels and artistic work which was used on the cartons. The scheme layout and get-up of the label was copied with slight variations, i.e. the logo in the two was different. The Court granted injunction restraining the defendant from infringing the copyright in original artistic work in the carton or any colorable imitation or a substantial reproduction of the original artistic work.

· In Hindustan Pencil (Pvt.) Ltd. Vs. Universal Trading Co.,[5] the Court held that the word ‘Natraj’ has been used from time immemorial but when it is presented in a particular design, get-up, color combination and specific pattern it can be called the artistic work. From the circumstances of the case the Court held that copyright exists in the impugned artistic work. In the case of Hi Tech Foods vs. Khanna Enterprises,[6] the defendant was restrained from dealing with the mark ‘Chetak’ or any other mark which bears resemblance to plaintiff’s work of art ‘Catch’ as such use amounts to infringement of copyright.

A trademark is protected only when another person uses an identical or deceptively similar mark as a trademark in relation to similar goods or services which are registered without the consent of the proprietor. Whereas in infringement of copyright, substantial reproduction of the label would constitute infringement of copyright. In Relaxo Rubber vs. Aman Cable,[7] the trademark "Relaxo" was used by the plaintiffs in relation to footwear. The defendants manufactured and sold cables and PVC pipes using "Relaxo" in the same style of writing in which the plaintiff’s had copyright registration. On the facts of the case, passing off was held not to be made out. As the word "Relaxo" which was written artistically was enjoying copyright protection, the infringement of exclusive right to artistic work was restrained by injunction. This shows the importance of copyright law in the protection of label trademarks. In a combined suit for infringement of trademark and infringement of copyright, the suit is maintainable in a place where the plaintiff resides or carries on business.

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[1] 1990 IPLR 266.

[2] PTC (Suppl.) (2) 293 (Mad).

[3] 2000 Delhi High Court, IPR law, India.

[4] 1999 PTC 188 (Mumbai).

[5] 2000 PTC 561 (Del) (DB).

[6] 1998 PTC 689 (Del).

[7] 1998 PTC 759 (Del).

Remedies to the Person against the Order of Registrar in Opposition Proceedings and Jurisdiction in Case of Rectification Proceedings

Remedies to the Person against the Order of Registrar in Opposition Proceedings and Jurisdiction in Case of Rectification Proceedings

Ms. Thabitha Marion Varghese

Any order or decision of the Registrar under Section 21 of the Act is appealable to the Appellate Board as per Section 91. Interlocutory orders passed, order granting extension of time under Section 21 or an order refusing the adjournment of the hearing or to take additional evidence is not appealable and hence does not come under the purview of Section 91. Section 91 of the Trademarks Act provides for an appeal against an order or decision of the Registrar to the Intellectual Property Appellate Board (IPAB). In some cases, parties may invoke a writ petition for an order of Certiorari or Mandamus. Any person aggrieved by an order or decision of the registrar shall make an appeal to the Appellate Board within 3 months from the date on which the order or decision is being passed. Appeal is not allowed after the expiry of 3 months, provided the Appellant satisfies the Appellate Board about the sufficient cause for not making an appeal within the prescribed time.

Section 92 of the Act deals with procedures governing rectification by the Appellate Board. An appeal to the Appellate Board shall be in a prescribed form accompanied by a copy of the order or decision appealed and prescribed fees as prescribed. Appellate Board is not bound by the procedure laid down in the Civil Procedure Code but by the principles of natural justice and provisions of the Act. The Appellate Board has power to receive evidence, issue commissions for examination of witnesses, requisitioning any public record or any other matter prescribed. Certified copies of every order or judgment of the Appellate Board relating to the trademark should be communicated to the Registrar by the Board and the Registrar will give effect to such order as per Section 97(2) of the Act. This is the remedy available to the person against whom the order of Registrar in Opposition proceeding is made.

An application for rectification under Section 47 and under Section 57 can be made to the Appellate Board or to the Registrar at the option of the applicant. Section 57 enables an aggrieved person to apply to the Appellate Board or to the Registrar for cancelling or varying the registration of trademark on the ground of any contravention or failure to observe a condition entered on the register. In a suit for infringement of a registered trademark the validity of registration of the plaintiff’s trademark has been challenged by the defendant, then the application for rectification of the register to determine the issue of validity should be made to the Appellate Board. In a criminal proceeding on registered trademark under Section 101 or Section 102, if the accused pleads that the registration of the mark is invalid, then an application for rectification of the register must be filed before the Appellate Board.

Remedies Available to the Proprietor of a Mark in Case of Infringement

Remedies Available to the Proprietor of a Mark in Case of Infringement

Section 135 of the Trademarks Act, 1999 deals with remedies or reliefs which the Court grants in any suit for infringement or for passing off which includes injunction, damages, account of profits along with or without any order for the delivery-up of the infringing labels or for the destruction or erasure of such marks or labels. An injunction may include an ex parte injunction or an interlocutory order for discovery of documents or for preserving infringing goods, documents or evidence pertaining to the subject matter or restraining the defendant from disposing or dealing with the assets which adversely affects the plaintiff’s ability to recover damages, costs or remedies. The nature of relief in passing off action is same as that of in infringement action provided there is similarity in marks.

The object of injunction is to restrain the defendant from infringing the mark or from passing off his goods as that of the plaintiff. If there is a possibility of the defendant destroying or incriminating materials, the Court may make an order for inspection of the premises of the defendant on an ex parte application by the plaintiff without giving the defendant notice of the application. It is better for the plaintiff to ask for an interim injunction to restrain the defendant from committing the complained acts until the orders are passed. It the matter is extremely urgent, the plaintiff can ask for an ex parte interim injunction before the interim injunction is fully heard. The plaintiff at his option will be granted either damages or account of profits, but not both. If the infringement is of a certificate mark, the Court can grant only nominal damages. With damages the defendant is required to give up his ill gotten gains to the aggrieved party and with account of profits the infringer is required to compensate the aggrieved party for the loss he has suffered.

The extent of damage is calculated from the estimates taken from the evidence. Costs in suits of infringement are according to the discretion of the Court subject to the provisions of Section 35 of Code of Civil Procedure. Generally Court does not order for discovery against a party to whom no reasonable cause of action is to be alleged. During delivery up of infringing labels, the goods bearing the deceptive mark in possession of the defendant may not be ordered to be destroyed instead the labels or marks will be erased from them. If the mark is stamped or printed on the goods and if erasure is not possible, then the goods will be ordered to be destroyed. These are the remedies which are available to the proprietor of a mark against infringement.

Ms. Thabitha Marion Varghese

Prior Knowledge/ Prior Publication/ Exhibits In Public In Infringement Of Patent Proceedings

Effects Of Prior Knowledge/ Prior Publication/ Exhibits In Public In Infringement Of Patent Proceedings

Ms. Thabitha Marion Varghese

The term publicly known or publicly used is used under Section 25(1) (d) which is a ground for opposition. Importation into India before the priority date of a product made by the pate ted process would amount to public knowledge or public use except where such importation was for the purpose of reasonable trial or experiment. Information whether in documentary form or in the form of invention if communicated to a single member of the public without inhibiting fetters is enough to make an invention public. Section 13 of the Act states that any claim in the invention if not new or was publicly known or used in India before the priority date of the claim or published in India or elsewhere is said to have lack of novelty. Mere publication is not enough to establish public knowledge. A thing may be publicly known either orally or through document.

Publication must be such that the persons to whom the information is communicated must be free to use it and to communicate the information to others. It is sufficient if the invention is known to the persons who are engaged in the pursuit of the knowledge of the patented product or process. If the public once becomes possessed of an invention by any means, no subsequent no subsequent patent for it can be granted either to the true or to the first inventor or to any other person. Thus an invention is said to be publicly known by oral prior disclosure. An invention will become publicly known through documents or books published prior to the date of patent as held in Otto vs. Steel.[1] Section 29-33 provides exception to the law of anticipation. A claim will not be deemed to have been anticipated by reason only of prior publication, prior communication, prior public display in exhibitions, prior public working.

Exceptions to anticipation are:

Ø Prior publication in a specification filed in pursuance of an application for a patent made

before 1^st January 1912.

Ø A prior publication, if the matter was obtained from the true inventor or from the one

who derived title from him, published without his consent, an application for patent made by persons entitled soon after knowledge of such publication in India or in the Convention country or if the invention was not commercially worked in India for purpose other than reasonable trial.

Ø Any other application for patent in respect of the same invention in contravention of the

rights of the person entitle d to the invention or any use or publication pursuant to that application without the consent of the person entitled.

Ø Prior communication to Government for investigation of the merits of the invention.

Ø Public display or use of the invention with the consent of the person entitled in an

exhibition authorized by Government notification or publication of the description of the invention consequent to such exhibition or use of the invention by any person after its display in the exhibition or description of the invention in a paper read by the first or true inventor before a learned society or published with his consent in the transaction of such a society if the application for the patent is made within 12 months from the date of exhibition or reading or publication of the paper.

Ø Public working during one year before the priority date by the person entitled to the

patent or by any other person with his consent if the working was for reasonable trial and was necessary.

Ø Publication or use of matter described in the provisional specification after the date of

filing of the provisional specification.

Ø And in case of conventional application, publication or use of the invention after the date

of application in the convention country.

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[1] (1886) 3 RPC 109.

Well Known Trademark and Prior User of a Trademark

Concept of Well Known and Prior User

Ms. Thabitha Marion Varghese

WELL KNOWNNESS

Section 2(1) (zg) of Trademark Act defines well known mark in relation to goods and services as a mark which has become so to the substantial segment of the public which uses such goods or services would be likely to be taken as indicating a connection in the course of trade or rendering of services between those goods or services and a person using the mark in relation to the first mentioned goods or services. Well known trademark contributes not only to the benefit of the trademark owner, but also to bring about a stable and fair development in International trade. The purpose of this strong protection is to prevent companies from free riding on the reputation of a well known trademark or from causing damage to the goodwill or reputation of the mark.

Section 11(2) of the Act states that a trademark which is to be registered for goods and services which are not similar to those for which the earlier trademark is registered in the name of a different proprietor, shall not be registered if the earlier trademark is a Well known trademark in India and the use of the later mark if would take unfair advantage or is detrimental to the distinctive character or repute of an earlier mark. Section 11(6) to Section 11(8) gives powers to the Registrar in determining whether a mark is well known or not and the factors to be considered are:

Ø Knowledge or recognition of the alleged well known mark in the relevant section of the public including knowledge obtained from promotion of the mark.

Ø Duration, extend and geographical area of the use of the mark.

Ø Duration, extend and geographical area for promotion of trademark including advertising or presentation at fairs or exhibition of goods or services to which the mark applies.

Ø Duration and geographical area of any registration or any publication for registration of the mark.

Ø Whether TM has been recognized as a well known mark by any Court or Registrar under record.

Ø The number of actual or potential consumers of goods and services.

Ø The number of persons involved in the channels of distribution of goods and services.

Ø The business circle dealing with the goods or services to which the TM applies.

Ø Where a TM has been determined to be well known by at least one relevant section of the public in India by any Court or Registrar, then the Registrar shall consider such a TM as a WKT.

Section 11(9) deals with factors which are not to be taken into consideration in determining a well known trademark and they are:

Ø Trademark used in India.

Ø Trademark has been registered.

Ø Application for registration of TM has been filed in India.

Ø Application for registration has been filed in any jurisdiction other than India.

Ø Trademark is well known to the public at large in India.

There is no separate registration procedure for well known trademark under Trademark Act, 1999. It is registered as any other ordinary mark and the conditions or registration has to be followed. The registration of a well known trademark can be refused if it is in conflict with the public policy requirements as under Sec.9 (2), or shape prohibitions as under Sec.9(3), even though it fulfills the other requirements under Sec.11(6) to Sec. 11(9). Infringement of a well known trademark takes place if the mark is registered and if the mark is not registered, then passing off takes place.

Section 29(4) of the Act deals with infringement of a registered well known mark. A person using in the course of trade, a mark which is identical with or similar to the registered trade mark having reputation in India or the use of it on different goods or services protected by registration constitutes infringement. Such use of a mark constitutes infringement of registered trademark having reputation in India if it is found that the use of the offending mark can take unfair advantage of the distinctive character or reputation of the registered trademark or is detrimental to the distinctive character or reputation of the registered trademark.

Judicial Interpretations

1) Kamal Trading Company v. Gillette UK[1]

Gilette has been using the trademark ‘7o’clock’ for blades, shaving creams for a long time. Kamal Trading used the same mark for their tooth brush. The former sued later for infringement. The Court held that the former has acquired worldwide goodwill and reputation form the mark and that customers purchasing such goods would connect the goods to Gillette the registered owner of the trademark and injunction was granted.

2) N.R.Dongre and Ors v. Whirlpool Corporation[2]

Whirlpool Corporation had its trademark ‘Whirlpool’ registered in India till 1977 but got lapsed for want of renewal. WPC filed a fresh application in 1988 and at the same time an Indian trust filed an application for registration of the same mark. In spite of WPC’s opposition the mark got registered. A suit was filed for infringement and the Court held that the reputation of the trademark ‘Whirlpool’ in respect to washing machines has travelled trans border to India and hence even though the respondents are not the registered proprietors in India, they can maintain action of passing off against Dongre.

3) Bata India Ltd v. Pyare Lal & Co and Ors.[3]

Bata India Ltd used the mark ‘Bata’ for leather shoes and canvas and the defendants used ‘Bataform’ for mattresses, sofas and cushions. A suit was filed to restrain defendants, their employees from using the mark. Defendant’s contention was that rubber foam was quiet different from rubber shoes and that the business had no connection with each other. The question which arose was whether plaintiff had established that he respondents are passing off goods of their own as that of the plaintiff. The Court held that there was infringement.

4) Daimler Benz and another v. Hybo Hindustan[4]

The plaintiff’s being owners of Mercedes Benz cars had used the mark ‘Benz’ along with a three pointed star. They became global leading producer and largest manufacturer of commercial vehicles in the world. The defendants who were garment manufacturers used the same mark which was infringement of the plaintiff’s mark. In this case the defendants were restrained from using the word ‘Benz’.

5) Aktiebolaget Volvo vs. Volvo Steels Ltd[5]

The plaintiff a Swedish company has a variety of business activities like manufacturing of automobiles, engines and equipments. They had established worldwide reputation under the name ‘Volvo’, known as Volvo group. They had registered their mark in India under Class 7 and Class 12.The defendant used ‘Volvo’ as part of their corporate name who were the manufacturers of mild steel ingots. ‘Volvo’ was a Latin word not known in India. Defendant’s contention was that ‘Volvo’ and ‘Volvo group’ are farfetched. The plaintiff obtained an interim injunction restraining the defendants from issuing shares to the public. The Court held that there was passing off trans border reputation.

6) Honda Motors Co. Ltd v. Mr. Charanjit Singh and Ors.[6]

The defendant company was using the trade name HONDA for ‘Pressure Cookers’ which they are manufacturing in India and even when their application for registration of this trademark had been rejected by the registrar they continued using it and again applied for registration and hence plaintiff has brought this plaint. Plaintiff is a well known company having presence all over the world in the field of Motor Cars, Motorcycles, Generators and other electronic appliances. They are doing business in India in association with the Siddharth Shriram Group with the name Honda Siel Cars India Ltd. Plaintiff has established that their business or goods has acquired the reputation and his trade name has become distinctive of his goods and the purchasing public at large associates the plaintiff's name with them. The use of trademark HONDA by respondents is creating deception or confusion in the minds of the public at large and such confusion is causing damage or injury to the business, reputation, goodwill and fair name of the plaintiff. Hence Court restricted the defendants from using the trademark HONDA in respect of pressure cookers or any goods or any other trademarks which are identical with and deceptively similar to the trade mark HONDA of the plaintiff and to do anything

which amounts to passing off to the goods of the plaintiff.

7) Jolen Inc v. Doctor & Co.[7]

Defendants had copied the plaintiff’s trademark ‘Jolen’ and the color scheme and layout of the container and carton used for cream bleach for hair. Plaintiff had a worldwide reputation for the trademark and the same product had trans border reputation in India although the products were not directly sold in India. Suit was decreed in favor of the plaintiff.

8) Calvin Klein Inc v. International Apparel Syndicate[8]

The plaintiff was internationally reputed designer clothing who filed a suit for passing off to restrain International apparel Syndicate from using the marks Calvin Klein and CK for clothes. The Calcutta High Court granted an injunction restraining the defendants from using the mark.

9) Alfred Dunhill Ltd vs. Kartar Singh Makkar[9]

The mark “Dunhill” had acquired global reputation including India in relation to tobacco products and was registered in India. Defendants were dealing with textile articles under the same name. The Court granted interim injunction by taking into consideration trans border reputation and as it was registered in India.

PRIOR USER

Prior use of a trademark occurs before a confusingly similar use of that same mark. Such use by the second user infringes the first user's trademark if the use by both parties is in the same geographic territory. In the United States, the first person to use a mark has prior rights, and may exclude all subsequent users of the mark in that territory. The establishment of "prior user" of a mark is an important strategy in defending infringement actions where the mark and the goods covered are identical as well as in trademark prosecution stages.

Judicial Interpretation

In the case of Nandhini Deluxe vs. Nandhini[10] the applicant trading as M/s Nandhini Deluxe filed an application for registration of trademark "NANDHINI DELUXE" with logo with respect to class 29 and after clearance of some preliminary objections the mark was advertised before acceptance for registration. The opponent trading as M/s NANDHINI (Andhra Style Multi-cuisine Family Restaurant) filed a notice of opposition objecting to the registration on the grounds that they had long and extensive use of the mark since1999. The Applicant filed a counter statement emphasizing that they are using the trademark NANDHINI DELUXE since 1989 for running Andhra Style Vegetarian and Non-Vegetarian restaurant and in view of the long user of the trademark "NANDHINI DELUXE" has become distinctive with him. The opposition proceeding eventually reached the stage of hearing after the opponent filed evidence in support of opposition and both the parties notified their intention to attend the hearing.

The issues involved were based mainly under the Sections 9, 11 & 181 and after careful consideration of the arguments advanced based on the above statutory requirements as well as the evidence adduced to the Deputy Registrar.
Both the applicant's and the opponent's mark are same design, get-up and way of writing are also same. The goods are identical. Both are engaged in the same business such as running Andhra Style Restaurant and selling cooked foods. Even though, both the applicant and the opponent are doing the same business, the user claimed by the applicant is nearly 10 years before the opponent. It is significant to note that both the Applicant and Opponent are carrying business in Bangalore. While the Applicant claims to be using the trademark NANDHINI with a device of lamp and written in a particular style since 1989, the Opponent is using "NANDHINI ANDHRA STYLE MULTICUISINE RESTAURANT (word per se). In view of prior user of mark by applicant, the applicant is entitled for registration of the trademark NANDHINI."

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[1] 1988 IPLR 135.

[2] 1996 PTC 415 (Del).

[3] AIR 1985 All 242.

[4] AIR 1994 Del 239.

[5] 1998 IPLR 63.

[6] 2003 (26) PTC 1 (Del).

[7] 2002 (25) PTC 29 (Del).

[8] 1995 IPLR 83 (Cal).

[9] 1999 PTC 294 (Del).

[10] 2007 (35) PTC 813 (Reg).

Prior User Vs. Prior Registration in Trademarks

Prior User prevails over Prior Registration

Ms. Thabitha Marion Varghese

Section 34 of the Trademarks Act, 1999 deals with prior users and their rights. The exclusive right obtained by registration cannot be used against the rights of prior users of the same or similar trademarks. The prior users get the right to be protected only on the fulfillment of certain conditions. Firstly the mark should have been used from a date prior to the use of the registered trademark, or prior to the date of registration, whichever is earlier. Secondly the prior user claimed must be by the proprietor himself or by his predecessor in title. And thirdly the user claimed must be continuous. On the fulfillment of these conditions the registered proprietor cannot interfere with or restrain the use of a similar mark by the person who claims prior use. The Registrar cannot refuse registration of the prior mark because of the existence of the registered trademark on the register. It is not sufficient to plead user prior to registration simplicitor. The prior user must show that they were substantial users and user prior to the application for registration. Section 34 can be taken as a defence in an infringement suit. This Section cannot be applied to obtain an injunction restraining the registered proprietor from interfering with the right of the prior user to use the trademark.

It is a well settled proposition of law that prior user of a trademark is accorded preference than a subsequent registrant. The impact and importance of prior user is reflective in Titan Industries Ltd. v. Registrar of Trademarks , where the second respondent filed an application for registering trademark ‘Classic’ in respect of clocks, watches, time pieces and other parts included in Class 14 claiming usage since 1987. But when the application was advertised in the Trademark Journal, Appellants filed their notice of opposition on the grounds that they are manufactures and dealers of wrist watches and they are the proprietors of ‘Titan’ word per se. They further claim that they are registered proprietors of trademark Titan Classique and that they are popularly known as classique or classic.

The allegation was that the mark sought to be registered by the second respondent is deceptively similar to that of Titan industries and the source of trade channel are also similar and that they are prior user of the mark and hence have valid rights. The second respondent filed counter statement along with a request for amendment of the date of user. The second respondent had earlier claimed user since 1987 in their application and by way of amendment through Form TM-16, they sought to change it. Titan Industries alleged mala fide intentions and contented that it was a dishonest attempt to improve their claim for registration on false and fabricated documents. The Assistant Registrar after hearing the matter, allowed the application on Form TM-16 amendment of date of user. Aggrieved by the said order, appeal was filed before the High Court of Delhi which was transferred to IPAB by virtue of section 100 of Trademarks Act, 1999.

Titan Industries contented that they had registered trademark “Titan Classique” as early as 25/08/1986 and it is also pointed out that the second respondent company was incorporated in the year 1988 only and hence their claim of usage since 10/04/1986 is false and the mala fide intention is explicitly clear. It was also pointed out that the second respondent had kept the mark for more than eleven years and only when the opposition was filed that they sought to amend the date of user with the intention to claim prior user. The arguments raised by Titan Industries were:

• Form TM-16 for amendment of the date of user after the mark was advertised in the Trade Mark Journal was not permissible.

• The amendment would cause undue hardship and prejudice to their rights.

• Their loss cannot be compensated in terms of money.

The IPAB distinguished the cases relied by the second respondent as the facts are different form the case on hand. The IPAB observed that it is clear that the Registrar of Trademark either before or after the acceptance of the application for registration can permit the correction by virtue of section 22 of the Trade and Merchandise Marks Act, 1958. But the Board opined that any amendment, which will materially change the nature of application, should not be allowed. The Board was convinced that the second respondent had proposed the changes at the belated stage with malafide intentions. The Board further ruled that the procedural laws should be intended to facilitate and not to obstruct course of substantive justice. Hence it was held that the application to amend the date of the user, which alters the nature of the application, cannot be allowed. The attempt of second respondent to amend the application so as to enable a prior date proves the importance accorded to ‘prior user’.