JUDGMENT

Yashwant Varma, J. -

INTRODUCTION

BRIEF FACTUAL BACKGROUND

SUBMISSIONS OF SAP SE

SUBMISSIONS OF THE FIRST RESPONDENT - SWISS AUTO PRODUCTS IN THE SAP SE REFERENCE

SUBMISSIONS OF MAHESH GUPTA

SUBMISSIONS OF THE SECOND RESPONDENT IN THE MAHESH GUPTA APPEAL

ANALYSIS OF THE TRADEMARK STATUTORY FRAMEWORK

THE IMPACT OF THE PHRASE "NOT EXCEEDING"

THE QUESTION RELATING TO APPLICABLE RULES

EPILOGUE

A. INTRODUCTION

1. The present reference has been placed before us consequent to a learned Judge of the Court expressing a doubt with respect to the correctness of the view expressed in Mahesh Gupta v. Registrar of Trademarks & Anr, 2023 SCC Online Del 1324] and which forms subject matter of challenge in the connected LPA 429/2023. The learned Judge has in terms of the order dated 03 July 2023 posed the following questions for the consideration of this Bench:

"(i) Whether the rules dealing with procedural aspects, including those relating to the filing of evidence introduced by the Trademarks Rules, 2017, would apply retrospectively to proceedings initiated under the Trademarks Rules, 2002.

(ii) Whether failure to file evidence in support of the trademark application would tantamount to 'anything done