JUDGMENT :

1. The petitioner, in this petition preferred under Section 57, [57. Power to cancel or vary registration and to rectify the register. –

(1) On application made in the prescribed manner to the High Court or to the Registrar by any person aggrieved, the Registrar or the High Court, as the case may be, may make such order as it may think fit for cancelling or varying the registration of a trade mark on the ground of any contravention, or failure to observe a condition entered on the register in relation thereto.

(2) Any person aggrieved by the absence or omission from the register of any entry, or by any entry made in the register without sufficient cause, or by any entry wrongly remaining on the register, or by any error or defect in any entry in the register, may apply in the prescribed manner to the High Court or to the Registrar, and the Registrar or the High Court, as the case may be, may make such order for making, expunging or varying the entry as it may think fit.] of the Trade Marks Act, 1999, has sought rectification of the Register of Trade Marks by removal, therefrom, of Registration No. 4842932 dated 5th July 2021, whereby the word mark “PIZZA GALLERIA”, was registered in favour of Respondent 1 under Class 30 of the Alphabetical Index of classification of goods published by the Registrar of Trade Marks under Sections 7 and 8, [7. Classification of goods and services. –

(1) The Registrar shall classify goods and services, as far as may be, in accordance with the International classification of goods and services for the purposes of registration of trade marks.

(2) Any question arising as to the class within which any goods or services falls shall be determined by the Registrar whose decision shall be final.

8. Publication of alphabetical index. –

(1) The Registrar may publish in the prescribed manner an alphabetical index of classification of goods and services referred to in Section 7.

(2) Where any goods or services are not specified in the alphabetical index of goods and services published under sub-section (1), the classification of goods or services shall be determined by the Registrar in accordance with sub-section (2) of Section 7.] of the Trade Marks Act read with Rule 20(2), [20. Classification of goods and service. –

(1) Classification of goods and service for the purpose of registration of trade mark, the goods and services shall be classified as per current edition of “the International Classification of goods and services (NICE classification)” published by the World Intellectual Property Organisation (WIPO).

(2) The Registrar shall publish a class wise and an alphabetical index of such goods and services, including goods and services of Indian origin.] of the Trade Marks Rules, 2017. Class 30 covers “flour and preparations made from cereals; bread, pizza, pastry and confectionery”.

2. Mr. Nikhil Sonker, learned Counsel for the petitioner, submitted that the petitioner was contesting the right of Respondent 1 to use the “PIZZA GALLERIA” mark in the city of Rewari. The challenge in this appeal is, therefore, restricted to said use. The petitioner does not begrudge the respondent the right to use the “PIZZA GALLERIA” in any other part of the country.

3. Interestingly, the petitioner and Respondent 1 are both running eating outlets under the name “PIZZA GALLERIA”. The petitioner’s outlets are situated in Rewari, whereas Respondent 1’s outlets are situated outside Rewari. In these circumstances, quite frankly, I am unable to understand why this Court should even trouble itself with deciding this dispute, as the petitioner has no objection to the Respondent 1 using the “PIZZA GALLERIA” mark outside Rewari. However, Ms. Sachdeva, learned Counsel for Respondent 1 submits that her client is unwilling to surrender the Rewari market. She also submits that, on an earlier occasion, this issue had arisen, but that her client was not agreeable to a disclaimer restricting the use, by it, of the contested “PIZZA GALLERIA