HINDUSTAN PENCILS PVT LTD Vs. PREM CHAND GUPTA

JUDGEMENT

(1.) THIS is a petition by M/s Hindustan Pencils Pvt. Ltd. (hereinafter referred to as 'the petitioner'). The petition has been filed under Section 107 read with Sections 46 and 56 of the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as 'the Act'). The petitioner prays that trade mark No. 324345 under which the respondent has got registered a trade mark in respect of mathematical instruments and water colour boxes (which are goods falling in class 16) should be removed and/or expunged from the Register of Trade Marks and that in any case the following goods should be specifically expunged from the registration, namely, "compass, dividers, set square, deeprotector & foot fule".

(2.) THE respondent had filed a suit (being suit No. 883/82) in this Court. In that suit the respondent had prayed that in view of the trade mark registered by him in respect of instrument boxes, the petitioner should be restrained from using the trade mark "NATARAJ" and the device of Natraj (which were said to be covered by the trade mark) in respect of instruments contained in geometry boxes or instrument boxes used generally in schools and other educational institutions. In the boave suit, the petitioner made an application under section 111 of the Act pleading invalidity of the registration of the trade mark in favour of the respondent and praying for stay of the suit under that Section. On 20-12-1982, D. R. Khanna, J. passed an order staying the suit and allowing the petitioner three months' time to file a rectification petition in respect of Trade Mark No. 324345 registered in favour of the respondent. It is in these circumstances that the present petition has been filed on 10.1.1983.

(3.) THE argument put forward on behalf of the respondent on the basis of the above proceedings for the registration of the trade mark is two-fold. THE first is that the petitioner having opposed the application for registration and failed, he is precluded, on grounds analogous to the principles of estoppel and res judicata to seek a cancellation of the registration on grounds which he could and did urge at that time but which he failed to substantiate or even on other grounds. THE other is that the petitioner cannot be said to be a 'person aggrieved' within the meaning of Sections 46 and 56 of the Act. It is also said that the remedy of the petitioner was to have sought a review of the order of Registrar under Rule 115 or preferred an appeal to the High Court under Section 109(2).