IMPORTANT POINT
The central legal point established is the application of Section 11(1)(b) of the Trade Marks Act, which disentitles the registration of a mark if it is deceptively similar to an existing registered mark and likely to lead to confusion in the market.

JUDGMENT (Oral)

C. HARI SHANKAR, J.

1.  This petition under Section 57 of the Trade Marks Act, 1999 seeks rectification of the register of trademarks by removal, therefrom, of the mark "RAZOFAST", registered in favour of Respondent 1 on 23 December 2018 vide Certificate No. 2058491 w.e.f. 25 June 2018.

2.  Mr. Ranjan Narula, learned counsel for the petitioner points out that, even as on 25 June 2018 when Respondent 1 had applied for registration of the "RAZOFAST" wordmark as a trademark, the petitioner was already the proprietor of a registration for the mark "RAZO", granted on 23 May 2018 vide certificate no. 1868927. This Court has, vide judgment and decree dated 16 August 2023, passed in CS (COMM.) 436/2021 between the plaintiff and the defendant, already held that the mark "RAZOFAST" of Respondent 1 infringes the petitioner's registered mark "RAZO", as it copies and incorporates the entire registered "RAZO" trademark of the plaintiff and is deceptively similar thereto. That judgment remains undisturbed till date.

3.  As such, as the impugned mark is deceptively similar to the mark "RAZO" of the petitioner, registered prior in point of time, the very Application No. 3869298 filed by Respondent 1 on 25 June 2018, seeking registration of the impugned mark "RAZOFAST", in class 5, which was the same class in which the mark "RAZO" stood registered in favour of the plaintiff on 23 May 2018 w.e.f. 24 May 2012, could not have been granted.

4.  The impugned mark "RAZOFAST" is deceptively similar to the petitioner's mark "RAZO", registered prior in point of time, registered prior to the filing of the application for registration by Respondent 1 for the mark "RAZOFAST". Both the marks are used for the pharmaceutical compound Rabeprazole. In view of these facts, this Court has already held, in its judgment dated 16 August 2023 in CS (COMM.) 436/2021, that the use of the mark "RAZOFAST" by the defendant is likely to lead to confusion in the market. All considerations, envisaged by Section 11(1)(b) of the Trademarks Act, which would disentitle the application of Respondent 1 for registration of mark "RAZOFAST" even from consideration, stand satisfied in the present case.

5.  Despite notice, Respondent 1 has not turned up to contest the present petition.

6.  The registration of the mark "RAZOFAST" in favour of Respondent 1 vide registration certificate no. 2058491 dated 23 December 2018 is declared illegal. It is, accordingly, cancelled. The Registrar is, therefore, directed to rectify the register of trademarks by removal, therefrom, of the mark "RAZOFAST" as registered in favour of Respondent 1 vide certificate no. 2058491 dated 23 December 2018 w.e.f. 25 June 2018.

7.  The petition is, accordingly, allowed.