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Can A Party Be Allowed To Claim Different Trademark User From What Has Been Claimed In Trademark Application?

  • When ever any Trademark application is filed by a party, it has to furnish the user detail of the subject matter Trade mark applied for?
  • Question is this whether a Party be allowed to claim different Trademark user from what has been claimed in Trademark Application?

This question has been answered by Hon'ble High Court of Delhi in its Judgement dated 18.08.2022 passed in Writ Petition bearing .WP (C) IPD 101 of 2021 titled as Vee Excel Drugs and Pharmaceuticals Pvt. Ltd. Vs Union of India and others.

This Writ Petition was filed by the Petitioner against order dated 31.07.2013 passed by Ld. Intellectual Property Board whereby the registered Trademark of the Petitioner was cancelled.

The Petitioner filed the subject matter Trademark application VEGA ASIA on 08.02.2002, on a proposed to be used basis. While the Respondent No.2 filed trademark application for VEGAH TABLETS on 24.04.2002 vide the registration no. 1098288 in Class 05, claiming use thereof since 01.04.2002.

Vide the order dated 31.07.2013, the Ld. IPAB was pleased to cancel both of the registered Trade Mark of the Petitioner as well as the Respondent No.2. In the subject matter Writ Petition, the Petitioner has challenged the impugned order dated 31.07.2013 only to the Limited extent where by its registered Trademark VEGA ASIA was cancelled.

Though the Petitioner has filed its Trademark application VEGA ASIA as proposed to be used in the year 08.02.2002, however the same same claimed prior user on the basis of assignment of the subject matter Trademark from one MA GAYATRI.

The Hon'ble High Court of Delhi rejected this argument of the Petitioner by observing that:
The petitioner in its application seeking registration of the mark VEGA ASIA had claimed the same to as proposed to be used. Any claim of prior user thereof by the petitioner itself, cannot therefore be accepted.

More over the Hon'ble Court also observed that the Petitioner was unable to prove use of MA GAYATRI in relation to the subject matter Trademark. Though one NOC from DCGI in favour of MA GAYATRI was put on record by the Petitioner, but according to the Hon'ble Court, the same was not sufficient enough to show user.

On the Contrary, the Hon'ble High Court of Delhi found the documents of user of Respondent No.2 prior in point to time to that of the Petitioner. The Hon'ble High Court of Delhi was sitting in Writ Jurisdiction. The Court observed that in Writ Jurisdiction, the Court can not re appreciate the evidence.

The Hon'ble High Court of Delhi, for this purpose , relied upon the following Judgement: U.V. Enterprises v. New Bharat Rice Mills, 2012 SCC OnLine Del 3645:

12... One may only remind oneself that the court, while exercising jurisdiction under Article 226 of the Constitution of India, is not acting as an appellate court and, therefore, findings of fact reached by tribunals, as a result of appreciation of evidence cannot be re-opened or questioned in writ proceedings unless it is a case of no evidence or a case where a tribunal has erroneously refused to admit admissible and material evidence or, has erroneously admitted inadmissible evidence which, propelled it to come to the impugned finding.

Apart from these errors, findings of fact arrived at by an inferior court or tribunal cannot be reopened. The other exceptions where the superior courts exercising writ jurisdiction can interfere are cases where principles of natural justice are breached or a subordinate Court or tribunal acts without jurisdiction or exercises jurisdiction with material irregularity. Therefore, it is often said that a writ court is concerned with the decision making process and not the decision itself.

Thus it is apparent that while exercising the Writ Jurisdiction, the scope of interference is very limited. The Writ Court can exercise the Writ Jurisdiction only in cases of violation of principle of natural justice or where there has been material irregularity in the order assailed. As such situation was not prevalent in the subject matter Writ , the same was dismissed.

Case Law Discussed:
Vee Excel Drugs and Pharmaceuticals Pvt. Ltd. Vs Union of India and others

Order Date:18.08.2022
Case No.WP (C) IPD 101 of 2021
Delhi High Court
Navin Chawla, H.J.

Written By: Ajay Amitabh Suman, IPR Advocate, Hon'ble High Court of Delhi
[email protected], 9990389539

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