A party cannot claim prior user rights in trademark disputes without credible evidence despite their assertions; the onus to prove use lies on the claimant.

JUDGMENT

Navin Chawla, J. The present writ petition has been filed by the petitioner challenging the impugned order dated 31.07.2013 passed by the-then Intellectual Property Appellate Board (hereinafter referred to as `IPAB'), to a limited extent whereby the learned IPAB has allowed the rectification/cancellation petition bearing No.ORA/59/2005/TM/DEL, filed by the respondent no.2, seeking the rectification/cancellation of the petitioner's registered trade mark `VEGA ASIA' under the registration no.1079405 in Class 05, and directed that the said trade mark be removed from the Register of Trade Marks.

2. The petitioner had applied for the registration of the trade mark `VEGA ASIA' on 08.02.2002, on a `proposed to be used' basis. The same was registered on 31.03.2005.

3. On the other hand, the respondent no.2 applied for the registration of the mark of `VEGAH TABLETS' on 24.04.2002 vide the registration no. 1098288 in Class 05, claiming use thereof since 01.04.2002. The said mark was registered in favour of the respondent no.2 on 19.12.2003.

4. The petitioner and the respondent no.2 filed cross-petitions before the learned IPAB, seeking the rectification/cancellation of the marks registered in favour of each other.

5. By the impugned order dated 31.07.2013, the marks of both, the petitioner as also the respondent no.2, have been cancelled and directed to be removed from the Register of Trade Marks.

6. As far as the order of cancellation of the mark of the respondent no.2 is concerned, I am informed that the same has been challenged by the respondent no.2 before the High Court of Bombay and is pending adjudication.

7. The present petition concerns only the direction of the learned IPAB in directing the cancellation of the mark of the petitioner, that is, `VEGA ASIA' and its removal from the Register of Trade Marks.

Submissions on behalf of the petitioner

8. The learned counsel for the petitioner submits that the petitioner was not only the prior adopter of the mark `VEGA ASIA`, but also the prior applicant for the registration of the mark. He submits that the petitioner has been using the trade mark/label `VEGA ASIA' since the year 2002.

9. He further submits that though the respondent no.2 in its application seeking registration of the mark `VEGAH TABLETS' had claimed user only since 01.04.2002, the learned IPAB has directed the cancellation of the mark of the petitioner considering the user of the mark by the respondent no.2 to be since the year 2001. He submits that this clearly is an error apparent on the face of the record, for which the impugned order is liable to be set aside.

10. The learned counsel for the petitioner further submits that even otherwise, the use of the mark by the petitioner shall pre-date that by the respondent no. 2 due to its acquisition of the mark `VEGA' from another entity by the name of M/s Ma Gayatri, whose use pre-dates that of the respondent no.2's mark. He submits that M/s Ma Gayatri had filed an application seeking the registration of its mark `VEGA', claiming user since the year 1996. Though this registration was opposed both by the petitioner as also the respondent no.2, and such opposition is still pending, M/s Ma Gayatri, vide a Licence Agreement dated 21.07.2009, assigned its rights in the trade mark/label `VEGA' to the petitioner, thereby making the petitioner a prior user of the mark and the proprietor thereof.

11. The learned counsel for the petitioner further submits that there were a documents on record in form of an applica