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*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment
delivered on: 02.02.2017
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W.P.(C)
No.7941/2012
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ABHOY
KUMAR JAIN
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.....
Petitioner
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Versus
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VRAJLAL
MANILAL & COMPANY
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AND
OTHERS
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... Respondents
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Advocates who appeared in this
case:
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For the Petitioner
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:
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Mr Sanjeev Sindhwani, Senior
Advocate with Mr Ajay
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Amitabh Suman.
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For the Respondents
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:
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Mr Ripu Daman Bhardwaj for
R-2/Union of India.
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CORAM:-
HON’BLE MR JUSTICE SANJEEV SACHDEVA
JUDGMENT 02.02.2017
SANJEEV SACHDEVA, J. (ORAL)
W.P.(C) No.7941/2012 & CM No.19913/2012(stay)
1. The petitioner impugns order dated 07.11.2012 passed by the
Intellectual Property Appellate Board (hereinafter referred to as the IPAB),
allowing the Original Rectification Application filed by the respondent for
removal of the mark of the petitioner “Tufan”
under registration No.1148910, in class 34, thereby rectifying the trademark of
the petitioner.
W.P.(C) No.7941/2012 Page 1 of 5
2.
The respondent claims to be a
registered proprietor of trademark “Toofan
Bidi”, registered consequent to registration application TM-1 filed on
17.10.2001. The petitioner claims to be a registered proprietor of the impugned
trademark “Tufan” applied vide the
TM-1 filed on 07.11.2002.
3.
The respondent filed the
rectification application seeking rectification of the register of the
Registrar of Trade Marks and for removal of the trademark “Tufan” registered in favour of the petitioner.
4.
There is no dispute between the
parties that the parties consider the rival trademarks as deceptively similar.
The dispute is with regard to the priority in adoption of the mark by the
parties. Both the parties dispute the claim of each other with regard to the
date of the respective adoption. The petitioner claims to have adopted the mark
“Tufan” in the year 1998 and the respondent claims to have adopted the mark “Toofan Bidi” in the year 1999. The petitioner disputes that the
respondent adopted the mark in the year 1999 and contends that the same was
adopted much later and likewise the respondent disputes that the petitioner
adopted the mark in the year 1998 and contends that the same was adopted much
later than what is claimed.
5. On 07.11.2012, when the petition was listed before the IPAB and
disposed of by the impugned order, the petitioner (respondent before IPAB) was
not present. It is contended by the petitioner that
W.P.(C) No.7941/2012 Page 2 of 5
on account of medical reasons of the mother of the petitioner, the
petitioner could not before the IPAB, thus there could be no representation.
6.
The impugned order dated
07.11.2012 is assailed, inter alia,
on the ground that the order is an ex
parte order and does not take into account the various contentions and
submissions as well as the documents placed on record by the petitioner.
7.
It is contended that though the
order records that the IPAB has considered the material placed before it, the
order does not give any reasons for accepting the contention of the respondent
and rejecting the statement of defence and the material placed by the petitioner
before the IPAB. It is contended that the IPAB has not even examined the
material placed by the petitioner.
8.
Learned senior counsel for the
petitioner pointed out to certain invoices filed by the respondent before the
IPAB to contend that these were not genuine as there were certain discrepancies
in the said invoices.
9.
Without going into the
controversy being raised by the petitioner with regard to the genuineness or
otherwise of the material placed by the respondent before the IPAB, since the
impugned order is an ex parte order
and apparently does not consider the statement of defence and the material
placed by the petitioner before the IPAB, the impugned order dated 07.11.2012
is set aside. The Trademark of the
W.P.(C) No.7941/2012 Page 3 of 5
petitioner “Tufan” is restored
on the register of Registrar of Trademarks. The matter is also remitted to the
IPAB for reconsideration of the case of the parties.
10.
Learned senior counsel for the
petitioner has contended that there are certain more documents and evidences
that the petitioner would like to place before the IPAB. He contends that the
said material has been placed on the record of this case. Learned counsel for
the respondent opposes the request for filing additional documents and evidences.
11.
Since I have set aside the
impugned order and passed an order of remit, solely on the ground that the
order is an ex parte order and has
not taken into account the statement of defence and the material placed by the
petitioner before the IPAB, I am not considering the prayer of the petitioner
for filing additional documents/evidence before the IPAB and leave it to the
discretion of the IPAB to consider the prayer in accordance with law, if such a
prayer is made to the IPAB.
12.
Since the rectification was filed
in the year 2006 and the order impugned herein was passed in 2012, I deem it
expedient to direct the IPAB to expedite the hearing of the petition and
dispose of the same preferably within a period of six months from the date the
matter is taken up for the first time by the IPAB.
13.
It is clarified that the Court
has not examined the merits of the
W.P.(C) No.7941/2012 Page 4 of 5
contentions of either the
petitioner or the respondent and has passed
the order of remit in the limited
circumstances, as noted hereinabove.
14.
Learned counsel for the parties
inform that on account of insufficient number of members, no sittings of the
IPAB are being held. Parties are given liberty to approach the IPAB for fixing
an earlier date for commencing the hearing in the matter once the Appellate
Board is reconstituted.
15.
The Writ Petition is disposed of in the above
terms.
16.
There shall be no order as to costs.
17.
The Registry is directed to
transmit the records of the IPAB back to the IPAB, as expeditiously as possible.
18.
Dasti under the
signatures of the Court Master.
SANJEEV SACHDEVA, J
FEBRUARY 02, 2017
‘Sn’
W.P.(C) No.7941/2012 Page 5 of 5
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