The central legal point established in the judgment is the protection of trademarks against deceptively similar marks and the cancellation of a mark that is not distinctive of the goods or services it represents.

JUDGMENT

Prathiba M. Singh, J.

1. This hearing has been done through hybrid mode.

2. The Petitioner- GM Modular Pvt. Ltd. has filed the present petition seeking cancellation of trademark `GMT' bearing registration no.15484222 in class 9. The said mark is registered in the name of Respondent No.1- Mr. Gopal Shinghal. The case of the Petitioner is that it is engaged in the business of manufacture and trade of electrical goods, switches, appliances, and other allied and related goods. The Petitioner is stated to have adopted the mark `GM' in word and label form in the years 1999. Further, the mark `GM' forms part of the corporate name of the Petitioner as well. Visual representation of the mark of the Petitioner is as under:

[IMG]

3. As per the petition, the Petitioner has been using the said mark continuously, openly, and exclusively since it adopted it in the course of trade. Further, it is the case of the Petitioner that the mark `GM' has acquired substantial goodwill and reputation over time. The customers of the Petitioner include WAL-MART, TATA CHROMA, SPENCER'S, FUTURE GROUP, METRO, etc.

4. The case of the Petitioner is that it is the registered proprietor of the mark `GM' in both word and device mark forms in various classes including classes 7, 9 and 11 since the year 1999. Details of the trade mark registrations of the Petitioner have been given along with the petition which are as under:

5. Further, the `GM' mark of the Petitioner in logo form is also registered under the Copyright Act, 1957 bearing registration number A- 64280/2003. The Petitioner has been using the mark in question in the course of trade in relation to goods and services within the meaning of section 14 of the said Act. The Petitioner is also stated to be using the mark `GM' as part of its domain name www.gmmodular.com for conducting its business on the internet.

6. The audited accounts for the year 1999-2000 of the Petitioner have also been placed on record which would show that the sales of the Petitioner are to the tune of Rs. 76,92,194/- between April, 2002 to March, 2003.

7. The grievance of the Petitioner in the present petition is that Respondent No.1 has adopted the mark `GMT' in relation to similar trade and business as that of the Petitioner, i.e., manufacture and trade of electronics, wires and cables, choke, phatti, starters, electrical bells, buzzers, transformers, sockets, electric connectors, etc. The said mark has been registered by Respondent No.1 in his favour under trade mark number 1548422 in class 9.

8. The present rectification petition was filed in the year 2015 before the IPAB. A perusal of the record shows that the order sheet of the IPAB is not available. Further, along with the main petition, an application for stay was also filed by the Petitioner. From 2015 till 2021, the matter remained pending before the IPAB. Upon the enactment of Tribunal Reforms Act, 2021 the matter was transferred to this Court.

9. On 31st August, 2022, upon filing of the memo of parties, notice was issued to the Respondents. The record shows that the notice was served to Respondent No.1 through ordinary process on 16th January, 2023. The Process Server noting would show that the notice was received by one Mr. Gaurang Singhal who informed the Process Server