IMPORTANT POINT
The court affirmed that a party must produce valid documentation of trade mark registration to claim ownership, and the power of review is limited to errors apparent on the record.

JUDGMENT :

The petitioner is the plaintiff in O.S. No.1 of 2022 on the files of the II Additional District and Sessions Court, Thodupuzha, and the respondent is the defendant therein.

2. The petitioner is a partnership firm running a resort named ‘Misty Mountain Plantation Resort’. The trade mark ‘Misty Mountain’ was adopted as the trade name by the plaintiff's predecessor in 1999. An application for registration of trade mark was filed for the word ‘Misty Mountain’ under application No.2441920 in class 43 on 6.6.2019 in respect of services of ‘providing of food and drinks and temporary accommodation’ and the petitioner was assigned with the trade mark ‘Misty Mountain’.

3. By virtue of the assignment deed dated 13.9.2019, the same has been duly submitted before the Trade Mark Registry. In 2016, the petitioner came to know about the respondent's use of the said trademark with respect to a resort in Munnar. On enquiry, the petitioner came to know that the respondent secured a registration for the same mark with the application No.1969012. The petitioner immediately filed a rectification application for cancellation of the registration issued, and it was allowed, holding that the petitioner is the prior user of the trade mark. Despite the cancellation order, the respondent used the trade mark, violating the right of the petitioner and therefore, O.S.No.1 of 2022 was filed for a decree of declaration and for a permanent prohibitory injunction restraining the defendant from using in any manner the trade mark ‘Misty Mountain Resort’ or any other mark similar or deceptively similar to the registered trade mark of the plaintiff ‘Misty Mountain’. Along with the suit, an application for a temporary injunction under Order 39 Rules 1 and 2 read with Section 151 CPC was also filed. The learned District Judge passed an interim injunction order on 19.3.2022. The respondent filed I.A.No.2 of 2022 for vacating the said interim injunction order. After hearing both sides and marking Ext.Nos.A1 to A27 and Ext.Nos.B1 to B7, the learned District Judge, allowed I.A.No.2 of 2022 and vacated the interim injunction order passed. Aggrieved by order in I.A.No.2 of 2022, the petitioner filed I.A.No.8 of 2022 to review the order, along with a petition to condone the delay of 92 days, as I.A.No.6 of 2022. Another I.A., as I.A.No.7 of 2022, was also filed to receive additional documents. Objections were filed to all the applications by the petitioner. The District Judge, by a common order dated 13.2.2024, allowed I.A.No.6 of 2022 as well as I.A.No.7 of 2022, but dismissed I.A.No.8 of 2022, which was filed for reviewing the order in I.A.No.2 of 2022. It is challenging the said order in I.A.No.8 of 2022, this O.P. is filed under Article 227 of the Constitution of India.

4. A counter affidavit is filed by the respondent, wherein it was contended that this Original Petition is not maintainable as it has been filed by the petitioner, who is not the lawful proprietor of the trade mark. He has also approached this court with unclean hands and has concealed the material facts and documents. The plaintiff obtained the order in I.A.No.1 of 2022, by active concealment and suppression of facts and by filing I.A. No.2 of 2022 by the respondent, the ex-parte interim injunction order was vacated. I.A.No.8 of 2022 is an afterthought, as it is filed only with a delay of 92 days.

5. As per the order dated 24.12.2021 by the Assistant Registrar of Trade Mark, Chennai, in the certificate of registration, the registration in respect to word Misty mountain bearing application No.2441920 in class 43 stood cancelled and in the database, it was changed from registered to ‘review filed’. The respondent’s firm adopted the composite mark on 18.04.2009, and it has been used exclusively and uninterruptedly, since the said date. Therefore, prayed that the OP be dismissed.

6. Heard Sri.Benoy Kadavan for the petitioner and Sri.Sai Krishna Rajagopal for the respondent.

7. The question to be consider