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IN THE HIGH COURT OF DELHI AT NEW DELHI
JYOTI SINGH, J.
SUDHIR BHATIA TRADING AS V. BHATIA INTERNATIONAL – Petitioner
Versus
CENTRAL GOVERNMENT OF INDIA – Respondent
W.P. (C)-IPD No. 37 of 2021, C.M. No. 5660 of 2009
Decided On : 19-05-2022
Civil Procedure Code, 1908 - Order 6 Rule 17 - Trade Marks Act, 1999 - Section 57, (4), 20, (2), 6, 21(1), 28(1), 57, 19, (a), (b), 23 - Trade and Merchandise Marks Act, 1958 - Application For Registration Of Trademark - Suit For Perpetual Injunction, Infringement Of Copyright - Respondent No. 3 filed an application for registration of trademark LAXMAN REKHA Respondent No. 3 also filed a suit for perpetual injunction, infringement of copyright, passing off, delivery etc. against Petitioner herein, in respect of trademark.
Finding of the Court:
It is evident that Petitioner was completely aware of said remedy way-back in year, but chose to remain silent and took no steps to seek cancellation of mark and rectification of Register, with respect to trademark in question - Additionally, this would amount to rendering statutory remedy redundant and otiose - This Court cannot, by entertaining present writ petition, create an alternate mechanism to challenge registration of a trademark, though indirectly, against legislative intent - It is a settled principle of law that in a writ jurisdiction, which is an extraordinary jurisdiction of High Court, Court would not ordinarily assist those who are lethargic and indolent - If there is a delay on part of Petitioner, which is not satisfactorily explained, High Court may decline to exercise writ jurisdiction - This principle applies with a greater rigour, when Petitioner on account of its lethargy permits time to lapse and in meantime, third party rights are created - It is equally well-settled that mere writing of letters or representations cannot furnish an adequate explanation for delay.
Result: Petition dismissed.
JUDGMENT :
JYOTI SINGH, J.
1. By way of present writ petition, Petitioner seeks a writ of Certiorari quashing the advertisement with respect to application No. 731808, in Class 5, filed by Midas Hygiene Industries Pvt. Ltd./Respondent No. 3 herein for registration of trademark LAXMAN REKHA (label) and a further direction to the concerned Registrar of Trade Marks to re-advertise the application.
2. Factual narrative to the extent necessary and relevant for the present writ petition is that Respondent No. 3 filed an application on 29.01.1997, for registration of trademark LAXMAN REKHA (label). Respondent No. 3 also filed a suit for perpetual injunction, infringement of copyright, passing off, delivery etc. against the Petitioner herein, in respect of trademark LAXMAN REKHA. Learned Single Judge of this Court granted injunction against the Petitioner vide order dated 31.07.2001. In an Appeal before the Division Bench, the injunction order was vacated vide order dated 20.09.2001, however, in Civil Appeal No. 107/2002, the Supreme Court, vide order dated 22.01.2004, set aside the order of the Division Bench and restored the order granting injunction. The suit was transferred to the District Courts on account of pecuniary jurisdiction.
3. Before the learned Trial Court, Respondent No. 3 preferred an application under Order 6 Rule 17 CPC in the year 2006, seeking amendment of the plaint and along with the application filed copy of the registration certificate, whereby Respondent No. 3’s trademark/label LAXMAN REKHA was registered in Class 5.
4. It is averred in the writ petition that from the Registration Certificate, Petitioner learnt that the application for registration was advertised in Trade Marks Journal MEGA-1 on 25.08.2003. Petitioner thereafter contacted its lawyers, who on inquiry found that the trademark (label) of Respondent No. 3 was advertised, but was totally black and illegible. Petitioner then approached the Registrar of Trade Marks, Mumbai (hereinafter referred to as ‘the Registrar’) vide letter dated 09.02.2004 and requested him to re-advertise the mark, on the ground that the mark advertised on page 618, was not clearly visible and also enclosed photocopy of the relevant page for ready reference. This was followed by reminder letters dated 01.11.2006, 24.11.2006, 26.11.2006, 25.01.2007 etc., whereby Petitioner requested the Registrar to take action under Section 57(4) of the Trade Marks Act, 1999 (hereinafter referred to as the “Act”) more so, in larger public interest. Finally, a legal notice dated 10.06.2008 was sent to Respondent No. 2 seeking redressal of the grievance relating to the illegible advertisement. Receiving no response, Petitioner approached this Court by way of the present writ petition.
5. On 13.08.2008, notice was issued to the Respondents in the writ petition, but the stay application seeking stay of operation of the registration granted in favour of Respondent No. 3 was dismissed as not pressed at that stage.
6. Learned counsel for the Petitioner has sought quashing of the advertisement on many-fold grounds. It is contended that the Registrar failed to appreciate the provisions of Section 20(2) of the Act, which empowers the Registrar to re-advertise the trademark application, after remedying the flaws or errors in the advertisement.
7. It was contended that the Registrar failed to appreciate the purpose and purport of advertising the application, which is to inform the world at large that an application has been filed seeking registration of a trademark. It is the obligation of the Registrar of Trade Marks to maintain a Register of Trade Marks under Section 6 of the Act. If there is an error in the advertisement and the same is not rectified by the Registrar, it would result in an impure entry in the Register. The Registrar took no action to re-advertise the trademark, despite the Petitioner pointing out that the advertisement was illegible.
8. It was next contended by Mr. Bhatia that the Registrar fa
Section 20 of Trade Marks Act, 1999 provides for advertisement of an application, either after acceptance or before acceptance, so as to afford an opportunity to the public, to oppose the registratio....
Writ petitions challenging trademark registration procedures must ensure procedural fairness, including issuance of notice and opportunity for affected parties to respond.
The main legal point established in the judgment is the importance of exhausting alternative remedies provided by the Trade Marks Act before seeking relief under Article 226 of the Constitution of In....
Unilateral cancellation of a trademark registration without notice violates procedural fairness and natural justice principles.
The trial court must assess only the prima facie tenability of claims regarding trademark validity under Section 124, without delving into the merits of those claims.
The Registrar of Trade Marks must issue notices under Section 25(3) to the registered proprietor to ensure compliance before trademark removal; failure to do so enables renewal despite lapse.
The Registrar must consistently apply relevant laws in trademark registration, ensuring procedural compliance, and cannot ignore third-party rights under the Trade Marks Act, allowing for comprehensi....
The central legal point established in the judgment is the requirement for distinctiveness of a mark for registration under Section 9(1)(a) of the Trade Marks Act, and the need for the Registrar to p....
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