Lakha Ram Sharma vs Balar Marketing P.Ltd.& Ors

3. The appellant herein is the proprietor of a concern by the name of Kundan Cables which is engaged in the manufacture of electric accessories and fittings including electrical switches, main switches, fuse units, wires and cables and electrical irons. Since 1980 the petitioner has been using the trademark Kundan/ Kundan Cab and the trade name Kundan Cables India in respect of the said goods. The appellant has also been supplying the said goods under the aforesaid trade marks and names to Respondent No. 1.

6. As per the aforesaid orders of the High Court, which was upheld by this Court also, the appellant was supposed to file the petition for rectification of the registered trade mark before the appropriate Court, as Delhi High Court did not have the territorial jurisdiction to adjudicate the matter. The petition filed in Delhi High Court was, thus, directed to be returned for presentation before the appropriate Court. However, before the application for rectification could be returned by the Registry of Delhi High Court, the Intellectual Property Appellate Board (hereinafter to be referred as 'IPAB') was constituted on 15.9.2003. On the establishment of this IPAB, such rectification applications are now to be entertained by the IPAB which has the exclusive jurisdiction to deal with such applications. The Registrar of Delhi High Court passed the orders dated 29.10.2004 directing return of the Rectification Petition to the Counsel for the appellant and it was finally returned on 2.11.2004. On same date, the appellant presented the petition before the IPAB.

7. Notice was issued by the IPAB to the Respondent Nos. 1 & 2 who filed their replies. The Respondent No. 1 filed a miscellaneous petition, being M.P. No. 31 of 2005 on the ground that the Rectification Petition could not have been filed as a continuity of the earlier proceedings before the Delhi High Court. For uncertain reasons, the matter dragged on before the IPAB for quite sometime and ultimately vide orders dated 9.3.2012 the IPAB dismissed the Rectification Petition on the ground that it was filed after a lapse of about 10 years from the date when registration was obtained by Respondent No. 1. The IPAB took the view that Rectification Petition was wrongly filed in the Delhi High Court as jurisdiction vested in the Madras High Court. Therefore, presentation of the petition before the IPAB on 2.11.2004 was taken as the date of filing the petition wherein rectification order was challenged. Since the registration was granted in the year 1995, on this basis the IPAB took the view that Rectification Petition was filed after a period of almost 10 years from the date of registration and therefore it was belated.

5. Vide orders dated 10.10.2001, a single Judge of the Delhi High Court upheld the objection regarding territorial jurisdiction and directed that the petition be returned for presentation before the appropriate Court. This order was upheld by the Division Bench. A Special Leave Petition against the order of the Division Bench being Special Leave Petition (Civil) No. 16800 of 2002 was also dismissed vide order dated 20.9.2002.

8. Aggrieved by the order of the IPAB dismissing the petition, the appellant filed Writ Petition before the High Court which has also been dismissed, as the view taken by the IPAB has found favour with the High Court.

10. We are of the view that the aforesaid 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 appellant to have the case adjudicated on merits.

13. We are, therefore, of the opinion that impugned order of the IPAB as well as High Court are liable to be set aside. These appeals are accordingly allowed. As a consequence the matter is remitted back to IPAB to decide the Rectification Petition on merits.

14. No costs.