The Hindu Business Line : HC declines to stay IPAB's order to rectify trademark

AN order passed by the Intellectual Property Appellate Board to rectify the registered trademark of a Hyderabad-based producer of various kinds of seeds could not be stayed from operation as prayed for by the producer, as no case was made out to that effect, a Division Bench of the Madras High Court has held.

The contention of the writ petitioner challenging the order dated June 11, 2004 of the Board was that he had been using the trademark from 1980-81 onwards and the first respondent (New Nandi Seeds Corporation, Ahmedabad) and, hence, he must be treated as honest and concurrent user of the trademark as that was how his trademark came to be registered originally.

The 1st respondent contended that according to the Board there was no material on record to show that from 1980 onwards, the petitioners had been using the said trademark in respect of the product (seeds) dealt with by them.

The trademark of the petitioners and the respondent were deceptively similar and it was used in identical products.

The Appellate Board found that the registration of the petitioner's trademark was not on the basis of Section 12(3) of the Trademarks Act, 1958.

The High Court Bench, consisting of Mr Justice R. Balasubramanian and Mr Justice T.V. Masilamani, said that according to the petitioners, their trademark `Nandi' was registered in 1994.

The 1st respondent, for the first time, challenged the said trademark only in 1997 before the competent court at Gujarat but also moved this court for rectification of the registration.

Delay on the part of the 1st respondent would disable him from getting the relief as prayed for in the rectification application.

The petitioners were shown to have been using the trademark for a long number of years continuously.

Hence, they must be treated as honest and concurrent users of the trademark. The 1st respondent, the Bench said, contended that the petitioner was guilty of suppressing the fact that the 1st respondent's trademark was registered way back in 1976.

The 1st respondent had issued a cease and desist notice on April 5,1987.

The petitioner had moved for registration of the trademark only after the above notice, and, therefore, by no stretch of imagination, it could be said that the petitioners were honest and concurrent users of the trademark in question.

The Bench said that having regard to the lengthy submissions made by both the sides, "we want to be very cautious in not expressing any final opinion" on the rival contentions.

They had to be guided only by the prima facie materials disclosed in the order of the Board.

Having regard to the findings of the Board, "we are of the opinion that no case is made out" to grant an interim order as prayed for pending disposal of the writ petition. Accordingly, the petition was dismissed.

"We make it clear that anything said by us in this order cannot be taken to mean any final expression of opinion on the rival contentions of the parties in the writ petition", the Bench said.

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