RG OSWAL HOSIERY INDUSTRIES Vs. UNION OF INDIA

JUDGEMENT

(1.) This Intra-Court appeal impugns the order dated 19.03.2010 of the learned Single Judge dismissing W.P.(C) No.610/2010 preferred by the appellant. The said writ petition was preferred impugning the order dated 11.12.2009 of the Intellectual Property Appellate Board (IPAB) allowing the rectification application filed by the respondent No.2 Mr. Dindayal Gupta trading as M/s Bhawani Textile in respect of registration granted in Class 25 to the appellant on 18.06.1968 and 31.09.1973 respectively for trademark and the label "DOLLOR" under Nos.249986 and 291763 respectively.

(2.) The appellant claims to be the proprietor of the trademark/label "DOLLOR" adopted by it in the year 1966. It was further the case of the appellant that the said registrations were renewed from time to time.

(3.) The respondent No.2 in or about the year 2001, applied under Section 107,46 and 56 of the Trade and Merchandise Marks Act, 1958 for cancellation of the aforesaid registered trademarks on the ground that the respondent No.2 was carrying on the business as manufacturer and merchant of hosiery item under the trademark "DOLLAR" since the year 1972; that the said trademark was also registered in its favour since the year 1972; that the appellant herein had however filed a suit against the respondent No.2 for infringement of trademark and passing off etc. and in which suit the appellant had claimed the registrations in its favour to be valid and subsisting; however the appellant had abandoned its trademark in the year 1972 and had never used the trademark "DOLLOR" in respect of goods for which it was registered; that though the appellant claimed an Assignment Deed dated 01.05.1989 with respect to its trademark "DOLLOR" with M/s Kedia Knitwears but the said Assignment Deed was a false and fabricated document; that since the appellant had initiated legal action against the respondent No.2, the respondent No.2 was an aggrieved person competent to apply for rectification. The respondent No.2 thus sought removal of the entries relating to registered trademarks Nos.249986 and 291763 in Class 25 in the name of the appellant.