TTAYIL PETER JOSEPH Vs. TTAYIL VARGHESE AUGUSTINE

JUDGEMENT

(1.) THIS original petition was filed by the petitioner under Sections 46, 56 read with Sections 107, 108 and 111 of the Trade and Merchandise Marks Act, 1958 for rectification of the Register of Trade Marks by expunction of the entries in the Register of Trade Marks and cancellation of the Trade Marks relating to the impugned registered Trade Mark No. 334228-B in Class 14.

(2.) THE petitioner who is a gold merchant is trading under the name and style of "THEttayil Jewellery" having his principal place of business at Angamaly, Kerala. THE first respondent is also a gold merchant trading under the name and style of "THEttayil Jewellery" having his principal place of business at Alwaye, Kerala. According to the petitioner the Madras office of the Trade Marks Registry is entered in the Register as the appropriate office in relation to the impugned mark and that he filed an application for rectification of the register in respect of the impugned mark registered in the name of the first respondent and that when the case came up for hearing before the point Registrar of Trade Marks on 7th July, 1988 he took up only the issue as to whether or not he had jurisdiction to entertain the application and decided that under Section 107 of the Act the validity of the registration of the impugned mark is determined only on an application for rectification of the Register being made to the High Court and not to the Registrar. Accordingly the petitioner has filed the present original petition before this Court.

(3.) THE first respondent has filled His counter statement. According to the first respondent this Court has no jurisdiction to adjudicate the case and that the High Courts at Bombay or Kerala only have jurisdiction. According to the first respondent the Trade Mark in question was granted by the Trade Mark Registry in Bombay. THErefore the appropriate office is the Bombay Office and not the Madras Office and hence only the High Court of judicature at Bombay has jurisdiction under the Act to entertain this portion. According to the first respondent the registration for the Trade Mark was granted by the Registrar of Trade Marks, Bombay and that the same was also renewed for a period of seven years from 7.3.1985 on the basis of the renewal application filed by the first respondent. In the light of the above, the first respondent submits that the High Court having jurisdiction over the subject matter of the present petition is High Court of judicature at Bombay and not this Court. Moreover the present petition directed against the original registration has become infructuous and on this ground alone this original petition is liable to be dismissed by this Court.