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Significance of Delay and Alternative remedy in a Writ

Issues Discussed: The Role of Delay and availability of alternative remedy in deciding the Writ Petition.

Case Title: Sudhir Bhatia Trading As V. Bhatia International Vs Central Government Of India - Date of Judgement:19.05.2022 [ W.P. (C)-IPD 37/2021]
Court: Hon'ble High Court of Delhi[Ms. Justice Jyoti Singh]

Brief Fact: The Petitioner filed writ petition before the Hon'ble High Court of Delhi, seeking Writ of Certiorari to quash the advertisement of trademark LAXMAN REKHA (label) of Respondent No.3 under No. 731808 in class 05.

The advertisement of the subject matter trademark application no.731808 in class 05 was published in the Mega Journal on 25.08.2003 and the trademark of Respondent No.3 was registered on 16.04.2005.

Grievance of the Petitioner was that the impugned trademark of Respondent No.3 under no. 731808 in class 05, when advertised in trademark Journal, the same was totally black and illegible.

In view of the above, the Petitioner vide letter dated 09.02.2004 the registrar of trade mark to re-advertise the mark, on the ground that the mark advertised was not clearly visible.

The Petitioner also addressed various reminder letters dated 01.11.2006, 24.11.2006, 26.11.2006, 25.01.2007. However as no action was taken by the Registrar of Trademark, the subject matter writ Petition was filed.

The Finding of Court: The subject matter Trademark was registered on 16.04.2005.

The Petitioner was very much well aware of said registration since the year 2006. However the Petitioner kept on writing only reminders to the Registrar of Trade Marks.

The writ Petition was filed after delay of 2 years. The court dismissed the writ filed by the Petition on the ground inter-alia n a writ jurisdiction, which is an extraordinary jurisdiction of the High Court, Court would not ordinarily assist those who are lethargic and indolent.

While dismissing the writ Petition, the Hon'ble High Court of Delhi also observed that the that post-registration of a trademark the remedy available to any person aggrieved is to seek cancellation of the mark and rectification of the Register, under Section 57 in Chapter VII of the Act.

However instead of pursuing the said remedy, the Petitioner kept on pursuing the present writ Petition.

Hence availability of alternative remedy was also another ground, because of which the subject matter writ petition was dismissed.

Written By: Ajay Amitabh Suman, IPR Advocate, Hon'ble Delhi High Court
Email: [email protected], Ph no: 9990389529

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