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Puma Stationer P. Ltd. and Anr. Versus Hindustan Pencils Ltd.

2010 (2) TMI 1253 - DELHI HIGH COURT

FAO (OS) 296/2009 - Dated:- 16-2-2010 - Madan B. Lokur, A.C.J. and Mukta Gupta, J. For the Appellant: Hemant Singh, Sachin Gupta and Shashi Kumar, Advs. For the Respondents: Sushant Singh, Manav Kumar, Tejinder Singh and Neha Kapoor, Advs. JUDGMENT Madan B. Lokur, J. 1. The Appellants are aggrieved by an order dated 1st May, 2009 passed by a learned Single Judge in IA No. 15842/2008 in CS (OS) No. 476/2004. 2. The Respondent had filed a suit alleging that the Appellants are passing off its goods .....

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ification/cancellation, the Appellants moved an application before the learned Single Judge under Section 124 of the Trade Marks Act, 1999 for a stay of the suit with regard to the alleged infringement. Section 124(1) of the Act which is material for our purposes reads as follows: 124. Stay of proceedings where the validity of registration of the trade mark is questioned, etc.-(1) Where in any suit for infringement of a trade mark- (a) the defendant pleads that registration of the plaintiff' .....

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f such proceedings; (ii) if no such proceedings are pending and the court is satisfied that the plea regarding the invalidity of the registration of the plaintiff's or defendant's trade mark is prima facie tenable, raise an issue regarding the same and adjourn the case for a period of three months from the date of the framing of the issue in order to enable the party concerned to apply to the Appellate Board for rectification of the register. 6. A plain reading of the above would show th .....

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ra Bhan Dembla Trading, Delhi v. Bharat Sewing Machine Co., Bikaner AIR 1982 Delhi 230 a composite suit was filed for infringement of a trade mark and for passing off. The learned Single Judge observed in paragraph 4 of the Report that once rectification/cancellation proceedings are initiated, the suit in the High Court is liable to be stayed: As for the question of stay, the position appears to be quite simple. Both the parties are registered owners of the identical trademarks. The trademarks i .....

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sting registration in favour of the defendants and these are pending in this Court. True, one of the rectification proceedings was filed subsequent to the institution of the suit but in view of Sub-section (2) of Section 111 of the Trade and Merchandise Marks Act, 1958, once such proceedings are filed, for the purpose of stay the fact that they are subsequent to the suit would be immaterial. In view of the contest between the parties with regard to the validity of the registration of each other, .....

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ously filed C. O. No. 17/1983, a petition under Sections 107, 46 and 56 of the Trade & Merchandise Marks Act for the rectification of the plaintiffs trade Mark No. 252967-B in Class 7, dated. 7-11-1968 Section 111 seeks to prevent parallel enquiries in the same matter. The intention of the Legislature is that the Court trying the suit must wait for the result of rectification proceedings before it passes any final order or decree involving the validity of the registration. Instead of requiri .....

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proceeding with the case while the plaintiff's trade mark is in jeopardy and the outcome of the rectification proceedings is awaited. 10. We see no reason to differ with the view taken by two learned Single Judges of this Court on a plain reading of Section 111 of the Trade and Merchandise Marks Act, 1958 which is in pari materia with Section 124 of the Trade Marks Act, 1999. 11. Learned Counsel for the Respondent, however, drew our attention to Bhavnesh Mohanlal Amin and Anr. v. Nirma Chemi .....

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ere is no scope for proceeding in the suit further. Learned Counsel for the parties agreed that an early disposal of the matter would be in the interest of the parties. Learned Counsel for the appellants fairly stated that the question relating to bar of jurisdiction in terms of Section 111 of the Old Act corresponding to Section 124 of the New Act shall not be raised and the trial court would be free to proceed with the suit. 12. On a reading of the above paragraph, we find that it is quite cle .....

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t the judgment referred to by learned Counsel is not at all relevant to this case since it has proceeded on a concession that the bar of jurisdiction would not be raised. 14. Our attention has also been drawn to Arun Colour Chem and Ors. v. Mithumal Essance Mart and Anr. 2009 VII AD (Delhi) 581. In our opinion, the passages relied upon by learned Counsel, that is paragraphs 15 and 16 of the Report do not support his case at all but in fact support the case of the Appellants. In that case, the ar .....

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