the appellant’s application No.5866458 for the mark “CASH FREE” in Class 36. Apart from that, the appellant has been granted registration No.5845001 dated 13.03.2023 for the trade mark “Cashfree Payments” under Class 35. If really, there is an absolute ground for refusal under Section 9(1)(b) of the Act, the same objection will apply, even, when the application was submitted by the appellant for the same mark “Cashfree Payments” in Class 35. However, no such objection was raised on the side of the respondent and registration has already been granted under Class 35. If that is so, the respondent cannot raise a new ground by applying Section 9(1)(b) of the Act, when the appellant is seeking for the registration of trade mark “Cashfree Payments” in Class 42. If the same is permitted, it will lead to arbitrariness. In short, if there is an absolute ground for refusal to register under Section 9(1)(b) of the Act, it will apply, even, when the mark was considered under Clause 35. If that objection was not even considered at that point of time, the respondent cannot be allowed to reject the application, when the very same mark is sought to be registered under Class 42.
