SAFARI CYCLES PVT LTD Vs. R D SHARMA

JUDGEMENT

(1.) The defendant has filed this application for stay of the proceedings in the suit till the rectification proceedings No. DEL 721 in respect of the trademark No. 34820 in clause 12 are finally disposed of as required by Section 111 of Trade and Merchandise Marks Act, 1958 (for short the Act).

(2.) In the application it is alleged that the suit is filed by the plaintiff on the allegation of infringement of its registered trademark No. 34820 in clause 12 which in the name of one Subhash Gupta who was trading as M/s. Safari Cycles. Subhash Gupta is not a party to this suit. The defendant No. 3 M/s. Safari International of which the defendant No. 1 and Smt. Rekha are partners had filed a rectification petition under Sections 46 and 56 of the Act. This business was constituted in the year 1994-95 and soon thereafter they filed a rectification application against the aforesaid registered trademark on 24.2.1995 before the Registrar of Trademarks, New Delhi which is pending. The rectification is sought, inter alia, on the ground of non user in terms of Section 46 of the Act. The present suit was filed after the filing of the rectification application and the plaintiff has a distinct and separate legal entity from that of Mr. Subhash Gupta who was the registered proprietor of the said trademark in question.

(3.) The plaintiff contested this application and stated that the rectification proceedings came to the notice of the plaintiff only after the written statement was filed by the defendant. The suit of the plaintiff is bona fide. Section 111(1)(b)(i) of the Act provided for stay of the suit if there was prior rectification. Sub-section (5) of the said section however did not prohibit the grant of interlocutory order, even if the proceedings in the suit are stayed. Other allegations were also traversed.