NALLI SAMBBASIVAM Vs. NALLI CHINNASAMI CHETTY

JUDGEMENT

(1.) In both these rectification petitions, the first respondent raised an objection to the maintainability of the petitions. Such objection was raised on the ground that a suit for infringement was filed earlier by the first respondent against the petitioner herein in relation to Trade Mark Nos.472754 and 903811, which are the subject of the present rectification petitions. The said suit was filed and numbered as Commercial Suit No.108 of 2013 before the Bombay High Court. The first respondent asserts that the present rectification petitions were filed about four or five years later before the Intellectual Property Appellate Board in ORA Nos.17 and 18 of 2018. In spite of the rectification petitions being filed subsequently, the first respondent states that the Bombay High Court did not conclude that there is a triable issue on the validity of the registrations of the relevant trade marks and frame an issue thereon. Since such issue was not framed, it is submitted that the present petitions are liable to be dismissed as not maintainable.

(2.) Learned counsel for the petitioner contended that the right to maintain a rectification petition is an independent right inter alia under Sec. 57 of the Trade Marks Act, 1999 (the Trade Marks Act). According to learned counsel, the said right is not subject to Sec. 124 of the Trade Marks Act. In support of this contention, learned counsel referred to the judgment of the Delhi High Court in Anubhav Jain v. Satish Kumar Jain & another(Anubhav Jain), 2023/DHC/000233. In particular, learned counsel relied upon paragraphs 17, 19, 24 to 26 and 30 of the said judgment.

(3.) After pointing out that two suits are pending before the Bombay High Court, including a suit filed by the petitioner herein, learned counsel relied upon the judgment of the Delhi High Court in Sana Herbals Pvt Ltd v. Mohsin Dehlvi, 2022/DHC/005678, to contend that both the suits and the rectification petitions may be clubbed and heard by the High Court so as to preclude the possibility of conflicting decisions. Learned counsel next relied upon the principle of constructive res judicata to contend that it is not open to the first respondent herein to challenge the maintainability of the rectification petitions after acceding to the consolidation of the two suits before the Bombay High Court. In conclusion, learned counsel relied upon the judgment of the Supreme Court in BGS SGS Soma JV v. NHPC Ltd. (2020) 4 SCC 234 to contend that the judgment of a court is not to be read as a statute or as Euclid's theorem.