The central legal point established in the judgment is the significance of establishing the status of a 'person aggrieved' under Section 47 of the Trademarks Act, 1999, and the requirement to satisfy the conditions for the removal of a registered trademark on the ground of non-use.

VIBHU BAKHRU, J.

1. The petitioner has filed the present petition, inter alia, impugning an order dated 06.01.2012 (hereafter ‘the impugned order’) passed by the Intellectual Property Appellate Board (hereafter ‘IPAB’), whereby the registration of the petitioners trademark “POPS” bearing Registration No. 507137 in class 30 (hereafter ‘the impugned mark’) has been directed to be removed from the Register of Trademark. The impugned order was passed on an application filed by the respondent alleging non-use of the said Trademark.

2. According to the petitioner, the impugned order is erroneous as the respondent was not a person aggrieved and, therefore, could not maintain an application for rectification of the registration in respect of the impugned mark. The petitioner further claims that IPAB had erred in not appreciating that the petitioner intended to use the trademark in question in India.

3. Briefly stated, the relevant facts necessary to address the controversy involved in the present petition are as under:-

3.1 The respondent is the proprietor of the registered trademark “POPS” under registration nos. 342674, 342675 and 342676 in classes 30, 29 and 30 respectively. The respondent has been using the said trademark for its goods being chewing gum, bubble gum and dairy products. The respondent asserts that its trademarks have acquired substantial goodwill and reputation in the market.

3.2 The petitioner was the registered proprietor of the impugned mark (trademark “POPS” bearing registration no. 507137 in class 30). It is the petitioners case that it had adopted the said trademark internationally in the year 1941. The petitioner is also the proprietor of the registered trademark “CORN POPS” bearing registration no. 638273, “COCO POPS” bearing registration no. 758864, “SNAP CRACKLE PPP” bearing registration no. 345988 and “POP-TARTS” bearing registration no. 516460. The petitioner also asserts that its trademarks have acquired substantial goodwill in the international market.

3.3 The impugned mark was registered in favour of the petitioner on 16.03.1989 and was subsisting in the petitioners name for the past 22 years.

3.4 The respondent also made an application for registration of a trademark “POPS” in class 30, which was published in the Trademark Journal no. 1232 (Supplement) dated 08.10.2000. The respondents application also included use for confectionery. This was not acceptable to the petitioner and, therefore, the petitioner caused a legal notice dated 25.11.2000 to be served on the respondent indicating its intention to oppose the respondents application. According to the petitioner, the respondents application also covered goods in which the petitioner was interested.

3.5 Thereafter, certain communications were exchanged between the parties. In July, 2001, the respondent filed a petition before this Court for expunging the impugned mark from the register. This petition was transferred to the IPAB and was subsequently allowed by the impugned order dated 06.01.2012.

4. The IPAB found that there was no evidence of sale of goods by the petitioner under the impugned mark from 1989 to 2011 and further the petitioner had also not shown any evidence that it intended to use the impugned mark. In view of the above, the IPAB decided to rectify the register by expunging the impugned mark.

5. Mr. N.K. Anand, learned counsel appearing for the petitioner advanced arguments on broadly three fronts. First, he submitted that respondent was not a “person aggrieved” and, therefore, was not entitled to maintain the petition for rectification of the impugned mark. He submitted that the respondent had been using the trademark “POPS” in relation to chewing gum and bubble gum, which were completely different products and, therefore, the registration of the impugned mark did not affect the interest of the respondent in any manner. He relied upon the decisions of the Supreme Court in Hardie Trading Ltd. and Anr. v. Addisons Paint and Chemicals