$~49
*
IN THE
HIGH COURT OF DELHI AT NEW DELHI
+W.P.(C)
9270/2015 & CM APPLN. 21260/2015
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VIJAY
KUMAR SALWANI TRADING AS M/S MODERN
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NAMKEEN
BHANDAR
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.....
Petitioner
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Through:Mr.S.K. Bansal,
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Mr.Ajay
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Amitabh
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Suman,
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Mr.Amit
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Tomar
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and
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Mr.Sudhir
Balyan, Advocates
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versus
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UNION
OF INDIA AND ANR
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Respondents
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Through:Mr.Akshay Makhija,
CGSC with
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Ms.Seerat
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Deep
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Singh,
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Mr.Ankit
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Tyagi, Advocates
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and
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Dr.
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B.C.
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Rathore, Joint
Registrar of Trade
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Mark
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Ms.Swathi
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Sukumar,
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Advocate
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(Amicus
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Curiae)
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with
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Ms.Surya
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Rajappan,
Advocate
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CORAM:
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HON'BLE MR. JUSTICE J.R. MIDHA
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%
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O R D E R
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28.05.2019
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1.
The petitioner has challenged the
removal of its registered Trade Mark No. 641088 without issuance of a mandatory
notice under Section 25(3) of the Trade Marks Act, 1999.
2.
Mr. Akshay Makhija, learned
standing counsel for Central Government submits that the notice under Section
25(3) of the Trade Marks Act, 1999 was issued by the department but the record
of the notice is not available and, therefore, the department is not in a
position to show the proof of having sent the notice. It is further submitted
on instructions from Dr. Bhuvan Chandra Rathore, Joint Registrar of Trade Marks
& G.I. that the Trade Marks registry has taken a decision to consider all
applications of removal where the relevant record of notice under Section 25(3)
of the Trade Marks Act is not available.
3.
This Court is of the view that
the removal of the registered Trade Mark No. 641088 by the Trade Mark Registry
is liable to be set aside and the department is at liberty to issue fresh
notice under Section 25(3) of the Trade Marks Act, 1999.
4.
The writ petition is allowed and
the removal of the petitioner’s registered trade mark No. 641088 by the Trade
Marks Registry is hereby set aside. The petitioner’s registered trade mark No.
641088 is hereby restored.
5.
The Trade Marks Registry is at
liberty to issue the fresh notice under Section 25(3) of the Trade Marks Act.
The petitioner is also at liberty to file an application for renewal of the
trade mark which shall be considered by the Trade Marks Registry in accordance
with law. Pending application disposed of.
6.
This Court is of the view that
Section 25(3) of the Trade Marks Act is mandatory and the Trade Mark Registry
is required to send a mandatory notice under Section 25(3) of the Trade Marks
Act before removing a trade mark from register. In that view of the matter, the
Registry shall consider the application for renewal as and when received
without raising any technical objection. In all cases where the Trade Marks
Registry has removed registered trade mark and the record of mandatory notice
under Section 25(3) of the Trade Marks Act is not available.
7.
The Trade Marks Registry shall
issue appropriate instructions for compliance of this order in such cases.
8.
This Court appreciates the
assistance rendered by Ms. Swathi Sukumar, learned Amicus Curiae in this
matter.
9.
Copy of this order be given dasti to counsel for the parties under
signatures of the Court Master.
J.R. MIDHA, J.
MAY 28, 2019/ds
