LexLAKHA RAM SHARMA versus BALAR MARKETING PRIVATE LIMITED & ORS.
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
[2013) 12 S.C.R. 735
LAKHA RAM SHARMA
v.
BALAR MARKETING PRIVATE LIMITED & ORS.
(Civil Appeal Nos. 10679-10680 of 2013)
NOVEMBER 27, 2013
[K.S. RADHAKRISHNAN AND A.K. SIKRI, JJ.]
Trade and Merchandise Marks Act, 1958 - ss. 46 and
A
B
56 - Trade mark registered in favour of respondent no. 1 -
Application of appellant for rectification of the registered Trade C
Mark - Dismissal of - On the ground of delay - Held: On
facts, not justified - It prejudiced the rights of the appellant to
have the case adjudicated on merits - Appellant was pursuing
its remedy with due diligence, without brooking any delay -
There was not even a slightest delay on his part in challenging
D
the validity of the trade mark obtained by Respondent No. 1
- It is a different matter that the application was returned by
the Delhi High Court for want of territorial jurisdiction -
However, the moment it was so returned by the Registrar of
the Delhi High Court, the appellant presented the same before
E
the Appellate Board (IPAB) on the same day - Having regard
to all the facts, one fails to understand as to how IPAB could
dismiss the rectification on the ground that it was filed after a
delay of 10 years - Appellant had pursued his remedy in a
bonafide manner and if it was filed in a wrong court and if he
F
pursued his remedy wrongly by filing it in Delhi High Court,
instead of Madras High Court, principles enshrined in s.14
of the Limitation Act clearly get attracted - Matter remitted
back to IPAB to decide the Rectification application on merits
- Limitation Act, 1963 - s. 14.
The appellant filed suit for injunction against
respondent no.1 for using his trademark. During
pendency of the suit, Respondent No.1 obtained
registration of the said trade mark in its favour. The
G
735
H
736
SUPREME COURT REPORTS
[2013] 12 S.C.R.
A appellant filed application under Sections 46 and 56 of
the Trade and Merchandise Marks Act in the High Court
of Delhi for rectification of the registered Trade Mark.
Respondent no.1 objected to the territorial jurisdiction of
the Delhi High Court to entertain the application. The
B objection was upheld by the Delhi High Court. The
application filed in Delhi High Court was, thus, directed
to be returned for presentation before the appropriate
Court. Meanwhile, the Intellectual Property Appellate
Board ('IPAB') came to be constituted which was given
c exclusive jurisdiction to deal with such applications. The
Registrar of Delhi High Court returned the Rectification
application to the appellant, whereupon he presented the
same before the IPAB. The IPAB dismissed the
Rectification application on the ground that it was filed
0 after a lapse of about 10 years from the date when
registration was obtained by Respondent No.1, and
therefore was belated. The order was affirmed by the
High Court, and therefore the instant appeals.
E
Allowing the appeals, the Court
HELD: 1. The line of action taken by the IPAB as well
as the High Court in dismissing the Rectification Petition
filed by the appellant on the ground of delay is wholly
erroneous, and it has prejudiced the rights of the
F appellant to have the case adjudicated on merits. [Para
10] [740-H; 741-A]
2. It is manifest that the appellant has been pursuing
its remedy with due diligence, without brooking any
delay. The appellant claims that he has been using the
G trade mark KUNDAN/ KUNDAN CAB and the name
Kundan Cables India since 1980. In fact he was the
supplier of these goods to Respondent No. 2. When the
appellant came to know that Respondent No. 1 was
using the trade mark Kundan, he immediately filed the suit
H for injunction against Respondent No. 1 in the District
LAKHA RAM SHARMA v. BALAR MARKETING
737
PRIVATE LIMITED
Court of Delhi which shows that in all earnestness, it A
wanted to protect his interest in the said trade mark. [Para
11] [741-8-D]
3. During the pendency of this suit Respondent No.
1 had obtained registration of trade mark 'KUNDAN' in its
8
favour. This happened in the year 1995. The appellant
prompltly filed the petition under Section 45 and 46 of the
Trade and Merchandise Marks Act for rectification of the
said registered trade mark and for cancelling/ expunging
the same. This petition was filed on 2.5.1995. Therefore
C
as far as the appellant is concerned, there was not even
a slightest delay in challenging the validity of the trade
mark obtained by Respondent No. 1. It iExcerpt shown. Read the full judgment & AI analysis in Lexace.