1 IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION WRIT WRIT WRIT PETITION NO. 861 OF 2009 PETITION NO. 861 OF 2009 PETITION NO. 861 OF 2009 Mars Restaurants Pvt. Ltd ... Petitioner Vs. Union of India & ors .. Respondents Mr.Madhur R.Baya with Mr.S.Murthy for Petitioner Mr.P.S.Jetley with Mr.Rajinder Kumar for Respondents CORAM CORAM CORAM : F.I.Rebello and : F.I.Rebello and : F.I.Rebello and J.H.Bhatia, J.H.Bhatia, J.H.Bhatia, JJ JJ JJ DATED DATED DATED : 7th May, 2009 : 7th May, 2009 : 7th May, 2009 P.C. Rule. Heard forthwith. 1. From the record, we find that the trademark "Birdys" is registered in the name of petitioners. The application for registration of the mark is dated 11th June, 2003. Before the mark was registered it was being used according to the petitioner exclusively by the petitioners herein for a long time. 2. We find that the impugned orders proceeded on the footing that the mark belongs to Mars Catering Services Pvt.Ltd. Before us, presently there is no material as to whether infact the owner of the said mark was Mars Catering Services Pvt.Ltd. Considering the above in our opinion, order for pre-deposit is set aside. We direct the Commissioner (Appeals) to hear the appeal on merits and according to law. We make it clear that we have not decided who the proprietor of the mark was at the relevant time and that quesion is open for consideration. Since the order of pre-deposit is 2 set aside consequently order dated 13th March, 2009 is also set aside. Rule made absolute accordingly. No order as to costs. { J.H.Bhatia, J } J.H.Bhatia, J } J.H.Bhatia, J } { F.I.Rebello, J } F.I.Rebello, J } F.I.Rebello, J }