Refusal orders under Section 11(1) must reason rejection of honest concurrent use evidence under Section 12; unreasoned mechanical orders ignoring user affidavits and non-use set aside with remand.

JUDGMENT :

ARIF S. DOCTOR, J.

1. The captioned Petition impugns an order dated 19^th May 2025 (“Impugned Order”) passed by the Respondent, i.e., Registrar of Trade Marks, rejecting the Petitioner’s Application No. 6072440 (“Subject Application”) for registration of the mark ‘ENTERO’, ‘’ (“Subject Mark”) as a device mark under Class 5.

2. However, before considering the rival contentions, it is useful for context to set out the following facts, viz.

i. The Petitioner filed the Subject Application on 18th August 2023, pursuant to which a Preliminary Examination Report dated 22^nd November 2023 (“Examination Report”) was issued by the Respondent.

ii. The Examination Report raised an objection under Section 11(1) of the Trade Marks Act, 1999 (“Trade Marks Act”), i.e., that the subject mark was identical and/or deceptively similar to an earlier registered mark, i.e., “EnteroGG” (“the cited mark”).

iii. The Petitioner then filed a detailed Reply dated 2nd December 2023 to the Examination Report, along with case law, in which the Petitioner inter alia set out

(a) the Petitioner's honest and concurrent use of the subject mark and

(b) the fact that the cited mark had never been used.

iv. A hearing was thereafter held on 15^th May 2025, during which the Petitioner filed a User Affidavit (“User Affidavit”), along with documentary evidence showing the Petitioner’s continuous honest and concurrent use of the subject mark since the year 2018.

v. However, despite the material relied upon by the Petitioner to show honest and concurrent use of the subject mark, Respondent No. 1 passed the impugned order refusing the subject application, on the ground that the subject mark was identical/deceptively similar to the cited mark and due to similarity of marks, and goods and services covered under the marks, there would exist likelihood of confusion.

vi. Hence, the present Petition.

Submissions on behalf of the Petitioner:

3. Mr. Kamod, Learned Counsel appearing on behalf of the Petitioner, at the outset submitted that the impugned order was entirely devoid of any reasoning, much less cogent reasoning, dealing with the material upon which the Petitioner had placed reliance to support the Petitioner's case of honest and concurrent use of the subject mark.

4. He then pointed out that the impugned order was merely a reproduction of the Examination Report and simply held that the registration of the Petitioner’s mark was objectionable under Section 11(1) of the Trade Marks Act, on the ground that the Petitioner’s mark was identical/similar to the cited mark, along with the similarity of goods and services covered under the respective marks, giving rise to the likelihood of confusion in the mind of the public. He, however, reiterated that such a finding was wholly unreasoned since it failed to consider, much less dealt with, the Petitioner's case of honest and concurrent use of the subject mark since the year 2018 and the relevant case law cited in support thereof. He thus stated that the impugned order was passed in a mechanical manner and without any application of mind.

5. Mr. Kamod then submitted that it was well-settled that all orders and/or decisions of statutory bodies in the exercise of adjudicatory, judicial, quasi-judicial, or administrative powers/functions must be reasoned since reasons are the soul of any judicial or quasi-judicial decision. He submitted that this was more so when such orders were amenable to challenge since it was only on an assessment of the reasons contained in an order that an