9911796707
TMI Blog2014 (1) TMI 473X X X X Extracts X X X X X X X X Extracts X X X X ..... stness, it wanted to protect his interest in the said trade mark. During the pendency of this suit Respondent No. 1 had obtained registration of trade mark 'KUNDAN' in its 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 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 is a different matter that this petition was returned for want of territorial jurisdiction. However, the moment this petition was return ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4.Sometime in the year 1994, the appellant came to know that Respondent No. 1 was using the Trade Mark 'KUNDAN'. The appellant immediately filed a suit for injunction in the District Court at Delhi which was registered as Suit No. 102 of 1994. During the pendency of the said suit, Respondent No. 1 obtained registration of the said Trade Mark in its favour. The registration was obtained by Respondent No. 1 by virtue of an assignment deed executed by Respondent No. 2 in respect of a pending application for registration. This prompted the appellant to file an 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 No. 507445 in class 9 and for cancell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ders 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 y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... viz. the High Court of Delhi which did not have territorial jurisdiction and therefore the appellant cannot take advantage of filing such a peititon before the Court which lacked the requisite jurisdiction. 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. 11.From the events disclosed above, 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 trade mark KUNDAN/ KUNDAN CAB and the name Kun ..... X X X X Extracts X X X X X X X X Extracts X X X X
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