The central legal point established in the judgment is that for a trade mark to be ineligible for registration under Section 11(1)(b) of the Trade Marks Act, there must be a cumulative satisfaction of three ingredients: similarity to an earlier trade mark, identity or similarity of the goods or services covered by the trade mark, and likelihood of confusion on the part of the public or of the public drawing an association between the marks.

JUDGMENT (Oral)

1. These are petitions preferred under Section 57 of the Trade Marks Act, 1999. They seek rectification of the Register of Trademarks by removal, therefrom, of the word mark "HARPIC DRAINXPERT". The impugned mark stands registered in favour of Respondent 1 in Classes 3 and 5, vide Registration No. 5258906 and 5258907 respectively. Registration no. 5258906, in Class 3, covering "cleaning, polishing, scouring or abrasive preparations; drain and sink cleaning preparations; products for drain maintenance, namely drain openers" forms subject matter of challenge in C.O. (COMM.IPD-TM) 93/2023 and Registration no. 5258907, in Class 5, covering "disinfectants; disinfectant preparations; disinfectants for household used or for hygiene purposes; disinfecting agents and preparations having disinfecting properties; disinfectants for institutional and commercial use" forms subject matter of challenge in C.O. (COMM.IPD-TM) 94/2023.

2. Mr. Rishi Bansal, learned Counsel for the petitioner has predicated his challenge in both these petitions on Section 11(1)(b)¹ [11. Relative grounds for refusal of registration. -
(1) Save as provided in section 12, a trade mark shall not be registered if, because of -
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(b) its similarity to an earlier trade mark and the identity or similarity of the goods or services covered by the trade mark,
there exists a likelihood of confusion on the part of the public, which includes the likelihood of association with the earlier trade mark.] and Section 11(10)(ii)²  [(10) While considering an application for registration of a trade mark and opposition filed in respect thereof, the Registrar shall -
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(ii) take into consideration the bad faith involved either of the applicant or the opponent affecting the right relating to the trade mark.] of the Trade Marks Act.

3. Mr. Bansal's case is that the impugned word mark "HARPIC DRAINXPERT" of Respondent 1 is similar to earlier trade marks of the petitioner, and is used with respect to goods or services which are similar to the goods or services in respect of which the earlier trade marks of the petitioner stand registered. This, he submits, has resulted in likelihood of confusion on the part of the public or of the public drawing an association between the impugned mark and the registered trade mark of the petitioner. Ergo, submits Mr. Bansal, the impugned trade marks could not have been registered under Section 11(1) and are, therefore, wrongly continuing to remain on the register of Trade Marks within the meaning of Section 57(2)³ [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.

4. The issue in controversy is, therefore, mercifully short. All that the court has to see is whether the impugned marks were, or were not, entitled to registration under Section 11(1)(b) of the Trade Marks Act. The submission based on Section 11(10)(ii) is merely a sequitur thereto.

5. Section 11(1)(b) requires cumulative satisfaction of three ingredients for a trade mark to be ineligible for registration. They are (i) that the trade mark should be similar to an earlier trade mark, (ii) that the go