Case: Haldi Ram Bhujiawala, Delhi Vs Haldi Ram Bhujiawala, Calcutta. Trademark Tribunal
|Party Name:||Haldi Ram Bhujiawala, Delhi Vs Haldi Ram Bhujiawala, Calcutta|
|Counsel:||For Appellant: Mr. N.K. Anand, Advocate and For Respondents: Mr. R.N. Parbhakar with Mr. M.R. Bhalerao, Advocates|
|Judges:||H. P. Shukla, DRTM|
|Issue:||Trade and Merchandise Marks Rules, 1959 - Rule 11(5); Trade and Merchandise Marks Act, 1958 - Sections 107, 127|
|Judgement Date:||April 23, 1992|
H. P. Shukla, DRTM.
1. These proceedings relate to (1) interlocutory petition dated 3-1-1992 filed on 6-1-1992 by M/s Haldi Ram Bhujiawala, also trading as Anand Kumar Deepak Kumar, 1454/2, Chandni Chowk, Delhi-110006 (hereinafter referred to as "the Applicants for Rectification") and (2) interlocutory petition dated 28-2-1992 filed on 4-3-1992 by Prabhu Shankar Aggarwal, Mahesh Kumar Aggarwal through his mother and natural guardian Smt. Shobha Aggarwal trading as Haldi Ram Bhujiawala, 7. Jugmohan Mullick Lane, Calcutta-700007 (hereinafter referred to as "the Registered proprietors"). To consider both the aforesaid interlocutory petitions, hearing was appointed on 20-4-1992 at 10-30 a.m. when Mr. R.N. Prabhakar alongwith Mr. M.R. Bhalerao, both Advocates appeared for the Registered Proprietors and Mr. N.K. Anand, Advocate of Delhi High Court appeared for the Applicants for Rectification.
2. Firstly, I shall decide the interlocutory petition dated 28-2-1992 filed on 4-3-1992 by the Registered Proprietors.
3. The grounds and prayer as mentioned in the said interlocutory petition read as under:
1. That the above mentioned rectification proceedings are pending before this Hon'ble Tribunal.
2. That the applicants for rectification have no locus standi to institute the proceedings seeking cancellation of the registered trade mark in the name of Registered Proprietors.
3. That the applicants had filed a suit for infringement and passing off against the Registered Proprietors on 10-12-1991 in the court of Shri Mahendra Pal, Addl. Judge, Delhi and had obtained ex parte interim injunction against the Registered Proprietors. The applicants knowingly made a false or misleading statement before this Hon'ble Tribunal to the effect that no action concerning the trade mark between the parties is pending in any court.
4. That the present rectification proceedings were recorded on 12th December, 1991 two days after the institution of the infringement and passing of the suit at Delhi by the Applicants. In view of the above, this Hon'ble Tribunal has no Jurisdiction to entertain and try the application for rectification in terms of the provisions of Section 107(1) of the Act and the application is liable to be dismissed with cost.
5. That in view of the foregoing submissions, it is prayed that the application for rectification may be dismissed with cost.
4. In reply to the said interlocutory petition, the Applicants for Rectification have filed an affidavit by Manohar Lal dated Nil of April, 1992 in the form of rejoinder. The main reply of the Applicants for Rectification to the said interlocutory petition has been stated in para 6 of the said affidavit to the effect that the suit instituted before the additional District Judge, Delhi on 10-12-1991 was against Mr. Ashok Kumar Aggarwal and the firm Haldi Ram Bhujiawala which was newly constituted and formed to carry on business at Delhi. The entity at Delhi appears to be different and distinct from the entity in whose name the trade mark No. 330375 was registered. None of the defendants in the suit...
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