Mr. P. C. Duraisamy Vs. Kewal Krishan Kumar & Anr.
Date of Judgment: 24.06.2026 : Case No.: CO(COMM.IPD-TM) 180/2022 : Neutral Citation: 2026:DHC:5054 : Court: High Court of Delhi : Hon'ble Judge: Justice Tushar Rao Gedela
The Court considered a dispute concerning rectification of the Trade Marks Register and cancellation of the registered trademark "SHAKTI" under the Trade Marks Act, 1999. The case arose from allegations that the registered proprietor had neither genuinely used the trademark from the date of its application nor established honest and concurrent use, despite obtaining registration.
The principal question before the Court was whether the registration of the trademark "SHAKTI" was liable to be removed from the Register under Sections 47(1)(a) and 57(2) of the Trade Marks Act, 1999.
After examining the material on record and the submissions of the parties, Justice Tushar Rao Gedela observed that there was no documentary or tangible evidence demonstrating genuine commercial use of the trademark from the date of application until its registration or thereafter. The Court held that the statutory requirements for maintaining the registration had not been satisfied and that the plea of honest and concurrent use was unsupported by evidence. Emphasizing that a trademark cannot continue on the Register merely on the strength of registration without proof of bona fide use, the Court directed removal of the trademark "SHAKTI" from the Register of Trade Marks within four weeks and disposed of the petition without any order as to costs.
Disclaimer: Readers are advised not to treat this as a substitute for legal advice as it is based on limited information and is intended solely for general informational purposes.
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Introduction
The law relating to trademarks is designed not merely to protect registered rights but also to ensure that the Register of Trade Marks reflects marks that are genuinely used in trade. A registered trademark is a valuable commercial asset, but the law does not permit a proprietor to retain exclusive rights over a mark that has not been honestly and continuously used in connection with goods or services. The decision of the Delhi High Court in Mr. P. C. Duraisamy v. Kewal Krishan Kumar & Anr. is an important illustration of this principle.
The judgment examines the circumstances in which a registered trademark can be removed from the Register on the ground of non-use and clarifies the evidentiary burden resting upon a registered proprietor who seeks to justify continued registration. The Court also considered the scope of Sections 47 and 57 of the Trade Marks Act, 1999 and analysed whether the proprietor could successfully rely upon the doctrine of honest and concurrent use despite the absence of credible evidence of actual commercial use.
The decision is significant for trademark proprietors, businesses, brand owners, intellectual property practitioners and applicants seeking rectification of the Register. It reinforces the principle that registration alone does not guarantee perpetual statutory protection and that genuine commercial use remains the cornerstone of trademark rights under Indian law.
Factual and Procedural Background
The dispute centred upon the registered trademark "SHAKTI" in relation to goods falling in Class 30 under the Trade Marks Act, 1999. The petitioner approached the Delhi High Court seeking rectification of the Register of Trade Marks by cancellation of the impugned registration.
According to the petitioner, the trademark had been applied for on 12 March 1996 and was eventually registered on 22 May 2018 in favour of the first respondent under Registration No. 701410. The petitioner asserted that despite obtaining registration, neither the registered proprietor nor the subsequent respondent claiming through the proprietor had genuinely used the trademark in the course of trade. It was alleged that the registration had remained on the Register without satisfying the statutory conditions governing use of registered trademarks.
The petitioner relied upon the provisions contained in Section 47(1)(a) of the Trade Marks Act, 1999, which permits removal of a registered trademark where there has been no bona fide intention to use the mark and where no bona fide use has in fact taken place within the prescribed period. The petitioner also invoked Section 57 of the Act, contending that the continued presence of the trademark on the Register was without sufficient cause and therefore liable to be rectified.
The respondents resisted the petition and attempted to justify the validity of the registration. Among other submissions, reliance was placed upon judicial precedents recognising the concept of honest and concurrent use. It was argued that the registration deserved protection and that objections relating to similarity of marks or likelihood of confusion were not sustainable.
The Court examined the pleadings, documentary evidence, statutory provisions and authorities cited by both sides before deciding whether the impugned registration should continue on the Register.
Dispute Before the Court
The principal controversy before the Court was whether the registered trademark "SHAKTI" could continue to remain on the Register of Trade Marks despite the petitioner's allegation that there had been no genuine commercial use of the mark from the date of its application until its registration and even thereafter.
The Court was required to determine whether the respondents had produced sufficient documentary evidence establishing bona fide use of the trademark in the marketplace and whether the statutory requirements contained in Section 47(1)(a) of the Trade Marks Act had been fulfilled.
Another important issue concerned the applicability of the doctrine of honest and concurrent use. The respondents argued that judicial precedents protecting concurrent users should save the registration, whereas the petitioner maintained that such protection was unavailable because the respondents had failed to establish honest and continuous use through reliable evidence.
The Court also had to consider whether the continued presence of the trademark on the Register amounted to an entry made without sufficient cause so as to justify rectification under Section 57(2) of the Trade Marks Act.
The Court approached the controversy by examining whether the impugned trademark registration satisfied the statutory requirements contained in the Trade Marks Act, 1999. It emphasized that registration of a trademark is not an end in itself. The statutory protection conferred upon a registered proprietor is subject to the obligation that the mark must be genuinely intended to be used and must, in fact, be used in the course of trade. A trademark which remains dormant for years without any commercial exploitation cannot ordinarily continue to enjoy statutory protection merely because it finds a place on the Register.
The Court first examined Section 47(1)(a) of the Trade Marks Act, 1999, which empowers the Court to remove a registered trademark if two essential conditions are established. The first condition is that, at the time of applying for registration, there was no bona fide intention on the part of the applicant to use the trademark in relation to the goods or services for which registration was sought. The second condition is that there has, in fact, been no bona fide use of the trademark up to a period of three months before the filing of the rectification application. The provision is intended to ensure that the Register contains only those marks which are genuinely associated with commercial activity and not marks that merely block the entry of others into the market.
The Court observed that the burden shifted to the registered proprietor to establish genuine commercial use once the petitioner produced material questioning the validity of the registration. Mere assertions in pleadings or oral submissions were held to be insufficient. Since trademark rights are commercial rights arising out of trade, the existence of such rights must ordinarily be demonstrated through commercial records such as invoices, sales records, advertisements, promotional material, packaging, tax documents, purchase orders, distribution records or other contemporaneous evidence reflecting actual use of the mark.
Upon examining the evidence produced by the respondents, the Court found a complete absence of reliable documentary material demonstrating that the trademark "SHAKTI" had been used from the date of the application dated 12 March 1996, during the long period preceding registration on 22 May 2018, or even thereafter. The Court recorded a categorical finding that there was no tangible evidence showing continuous or genuine commercial use of the trademark. Consequently, the statutory requirement contained in Section 47(1)(a) stood violated.
The Court next examined Section 57(2) of the Trade Marks Act, 1999, which empowers the High Court to rectify the Register where an entry has been made without sufficient cause or where an entry wrongly remains on the Register. The provision serves an important public function. It ensures that the Register remains accurate and reliable and does not continue to reflect registrations which have ceased to satisfy the statutory requirements. According to the Court, once it had been concluded that the statutory conditions under Section 47 had not been fulfilled, the inevitable consequence was that the registration also became vulnerable under Section 57 because it wrongly remained on the Register despite lacking legal justification.
A substantial part of the arguments advanced by the respondents was founded upon the doctrine of honest and concurrent use. They contended that the registration deserved protection because similar principles had been recognised in earlier judicial precedents. The Court carefully analysed this submission but concluded that the doctrine could not be invoked in the absence of proof of actual use. Honest and concurrent use is an equitable principle intended to protect traders who have independently and honestly adopted similar marks and have genuinely used them over a considerable period. It is not a substitute for evidence of use.
The respondents relied upon the decision of the Supreme Court in London Rubber Co. Ltd. v. Durex Products Incorporated, AIR 1963 SC 1882. In that case, the Supreme Court recognised the concept of honest and concurrent use and upheld registration after considering substantial evidence demonstrating long-standing commercial use by the parties. The Delhi High Court distinguished the decision on facts. It observed that, unlike the factual situation before the Supreme Court in London Rubber, the respondents in the present case had failed to produce any documentary evidence establishing honest and concurrent use of the trademark "SHAKTI". Since the very factual foundation necessary for invoking the doctrine was absent, the ratio of the Supreme Court decision could not assist the respondents.
The respondents also placed reliance upon the judgment of the Supreme Court in Nandhini Deluxe v. Karnataka Cooperative Milk Producers Federation Ltd., (2018) 9 SCC 183. In that decision, the Supreme Court had held that the existence of similar trademarks does not automatically result in deception where the parties operate in different fields of business and deal with different goods or services. The Court had emphasised that the likelihood of confusion must always be examined in the factual context of the competing businesses.
The Delhi High Court held that the reliance upon Nandhini Deluxe was misplaced. It observed that the principle laid down in that case applied where the competing marks related to different goods or distinct commercial fields. In the present case, however, both parties dealt with goods falling in Class 30. Consequently, the possibility of confusion and deception was substantially greater. More importantly, the issue before the Court was not merely one of deceptive similarity but of continued registration despite complete absence of proof of bona fide use. Accordingly, the Court held that the ratio of Nandhini Deluxe had no application to the facts before it.
The Court repeatedly emphasized that registration under the Trade Marks Act creates valuable statutory rights, but those rights are inseparably linked with genuine commercial use. The Act is intended to protect trade, goodwill and consumer confidence rather than to encourage the accumulation of unused registrations. Allowing dormant registrations to remain indefinitely on the Register would unjustifiably restrict honest traders from adopting and registering marks that are genuinely intended for commercial use.
The judgment also reflects the broader policy underlying trademark law. The Register is not merely a record of private rights but a public document relied upon by businesses, consumers and the Trade Marks Registry. Its accuracy and integrity are essential for the effective functioning of the trademark system. Therefore, where the statutory conditions are not satisfied and the registered proprietor cannot establish bona fide use, rectification becomes necessary to preserve the purity of the Register.
After considering the pleadings, documentary evidence, statutory provisions and judicial precedents, the Court concluded that the respondents had failed to discharge the burden of proving genuine commercial use of the trademark. The absence of invoices, sales records, advertisements or any other contemporaneous commercial evidence over an extended period clearly demonstrated that the statutory requirements had not been met. Consequently, the Court held that the trademark registration was liable to be removed under Section 47(1)(a) and that its continued presence on the Register also attracted Section 57(2) of the Trade Marks Act.
Final Decision of the Court
After analysing the pleadings, documentary evidence and the applicable provisions of the Trade Marks Act, 1999, the Court concluded that the respondents had failed to establish bona fide commercial use of the trademark "SHAKTI" from the date of its application on 12 March 1996, up to its registration on 22 May 2018, or even thereafter. The Court found that there was no documentary or tangible evidence demonstrating genuine use of the trademark in the ordinary course of trade. Consequently, the statutory requirements contained in Section 47(1)(a) of the Trade Marks Act stood violated.
The Court further held that once the registration had been shown to have remained on the Register without satisfying the statutory conditions, it also attracted Section 57(2) of the Act because the entry had been made without sufficient cause and wrongly continued on the Register.
Accordingly, the Court directed the Registrar of Trade Marks to cancel and remove Trademark Registration No. 701410 for the mark "SHAKTI" from the Register of Trade Marks within four weeks from the receipt of the order. The rectification petition was disposed of along with the pending applications. No order as to costs was passed.
Point of Law Settled
The judgment reiterates that registration of a trademark is not an absolute or perpetual right. A registered proprietor must be able to establish bona fide intention to use the trademark and genuine commercial use supported by reliable documentary evidence. Mere registration without actual commercial exploitation cannot justify continued statutory protection.
The decision also clarifies that the doctrine of honest and concurrent use cannot be invoked in the absence of convincing evidence showing long-standing, honest and continuous use of the mark. Furthermore, where the statutory requirements under Section 47(1)(a) are violated, the continued presence of the trademark on the Register becomes vulnerable to rectification under Section 57(2) of the Trade Marks Act, 1999.
The judgment reinforces the principle that the Register of Trade Marks must contain only those registrations that represent genuine proprietary rights arising from actual commercial use, thereby preserving the integrity of the trademark registration system.
Case Details
Title of the Case: Mr. P. C. Duraisamy v. Kewal Krishan Kumar & Anr.
Date of Judgment/Order: 24 June 2026
Case Number: CO(COMM.IPD-TM) 180/2022
Neutral Citation: 2026:DHC:5054
Name of Court: Delhi High Court
Name of Hon'ble Judge: Hon'ble Mr. Justice Tushar Rao Gedela
Written By:Advocate Ajay Amitabh Suman, IP Adjutor [Patent and Trademark Attorney], High Court of Delhi
Disclaimer:Images used herein do not reflect the actual images used in the Judgment and are included solely for illustrative purposes. Readers are advised not to treat this article as a substitute for legal advice, as it may contain inadvertent errors in perception, interpretation, or presentation.
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Headnote of the Judgment
Mr. P. C. Duraisamy v. Kewal Krishan Kumar & Anr., Delhi High Court, CO(COMM.IPD-TM) 180/2022, decided on 24 June 2026. The petitioner sought rectification of the Register of Trade Marks by cancellation of the registered trademark "SHAKTI" on the ground of non-use under Sections 47(1)(a) and 57(2) of the Trade Marks Act, 1999. The Court found that the registered proprietor failed to establish bona fide commercial use of the trademark from the date of application until registration or thereafter. Holding that the statutory conditions for retaining registration had not been satisfied, the Court directed cancellation and removal of the trademark from the Register within four weeks and disposed of the petition without costs.
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