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Shri Dindayal Gupta, trading as M/s. Bhawani Textiles v/s M/s. R.G. Oswal Hosiery Industries & Another


Company & Directors' Information:- OSWAL INDUSTRIES LIMITED [Active] CIN = U27100GJ1983PLC006037

Company & Directors' Information:- BHAWANI INDUSTRIES PRIVATE LIMITED [Active] CIN = U00000PB1999PTC022272

Company & Directors' Information:- OSWAL CO PVT LTD [Active] CIN = U51109WB1940PTC010293

Company & Directors' Information:- DINDAYAL INDUSTRIES LIMITED [Active] CIN = U24233MP1992PLC007344

Company & Directors' Information:- J G HOSIERY PRIVATE LIMITED [Active] CIN = U18101TZ2001PTC009707

Company & Directors' Information:- GUPTA TRADING CORPORATION (INDIA) PRIVATE LIMITED [Active] CIN = U51909DL1951PTC001907

Company & Directors' Information:- K D S HOSIERY PRIVATE LIMITED [Active] CIN = U18101PB2001FTC024327

Company & Directors' Information:- R M H HOSIERY PRIVATE LIMITED [Active] CIN = U17125DL2007PTC167271

Company & Directors' Information:- P R OSWAL HOSIERY PRIVATE LIMITED [Active] CIN = U74899DL2004PTC124189

Company & Directors' Information:- GUPTA INDUSTRIES PRIVATE LIMITED [Strike Off] CIN = U27101MH2005PTC156270

Company & Directors' Information:- T T INDUSTRIES AND TEXTILES LTD [Strike Off] CIN = U17299TG1981PLC002986

Company & Directors' Information:- P T M HOSIERY PVT LTD [Active] CIN = U52322WB1994PTC062394

Company & Directors' Information:- M G HOSIERY PRIVATE LIMITED [Active] CIN = U17124TZ2002PTC010195

Company & Directors' Information:- B M OSWAL HOSIERY PRIVATE LIMITED [Active] CIN = U51311PB1985PTC006334

Company & Directors' Information:- D K OSWAL HOSIERY (INDIA) PRIVATE LIMITED [Active] CIN = U18101UP2004PTC028524

Company & Directors' Information:- BHAWANI TEXTILES PRIVATE LIMITED [Amalgamated] CIN = U51109WB1995PTC070931

Company & Directors' Information:- GUPTA TRADING PVT LTD [Amalgamated] CIN = U74899DL1990PTC040319

Company & Directors' Information:- D D HOSIERY PVT LTD [Active] CIN = U18101WB1973PTC028694

Company & Directors' Information:- V V HOSIERY INDUSTRIES PVT LTD [Strike Off] CIN = U74899DL1988PTC032807

Company & Directors' Information:- M. B. HOSIERY PRIVATE LIMITED [Active] CIN = U18101WB2008PTC125110

Company & Directors' Information:- L C OSWAL HOSIERY PRIVATE LIMITED [Active] CIN = U18101PB1989PTC009968

Company & Directors' Information:- R R HOSIERY PRIVATE LIMITED [Active] CIN = U18101MH1984PTC034394

Company & Directors' Information:- OSWAL INDUSTRIES PVT LTD [Strike Off] CIN = U19202DL1984PTC019648

Company & Directors' Information:- RG INDUSTRIES PRIVATE LIMITED [Active] CIN = U51909DL2019PTC357198

Company & Directors' Information:- K K HOSIERY PRIVATE LIMITED [Active] CIN = U18204MH2014PTC251777

Company & Directors' Information:- B B HOSIERY PRIVATE LIMITED [Strike Off] CIN = U74999MH2015PTC267158

Company & Directors' Information:- OSWAL TRADING CO. PRIVATE LIMITED [Active] CIN = U67120MP2007PTC019234

Company & Directors' Information:- M C S HOSIERY PRIVATE LIMITED [Strike Off] CIN = U51311WB2001PTC093781

Company & Directors' Information:- R.G. TRADING COMPANY PRIVATE LIMITED [Strike Off] CIN = U67200NL1999PTC005797

Company & Directors' Information:- S P HOSIERY PVT LTD [Strike Off] CIN = U51311PB1985PTC006113

Company & Directors' Information:- M D OSWAL HOSIERY PVT LTD [Strike Off] CIN = U99999DL1980PTC010815

Company & Directors' Information:- TEXTILES AND INDUSTRIES LTD. [Not available for efiling] CIN = U00359MH1901PLC901062

    M.P. No.261/2008 in TRA/165/2004/TM/DEL

    Decided On, 27 February 2009

    At, Intellectual Property Appellate Board

    By, HONBLE SHRI Z.S NEGI
    By, CHAIRMAN & HONBLE MS. S. USHA
    By, TECHNICAL MEMBER

    For the Appellant: Ajay Sahni, Advocate. For the Respondent: R1 Saurabh Kapoor, Advocate.



Judgment Text

(Circuit Bench at New Delhi)


Hon?ble Ms S. Usha, Technical Member:


This Miscellaneous Petition seeks to reject the rectification application or to call upon the applicant to amend the rectification application in compliance with the provisions of the Act.


2. The petitioner herein (respondent No.1 in the main application) filed this miscellaneous petition on the ground that a single application cannot be filed for cancellation of two registered trade marks as it was wrong and contrary to the provisions of the Trade Marks Act, 1999 and Trade Marks Rules, 2003 and to the provisions of the Intellectual Property Appellate Board Rules, 2003. The marks were registered in the year 1968 and 1973, respectively, and that the cause of action arose at two different dates. As per the provisions of the Trade Marks Act, 1999, there is a new fees structure provided for each application. The rectification application is contrary to the provisions of sections 46, 56, 107 and 108 of the Trade Marks Act, 1999.


3. The respondent No.1 (applicant in the main application) filed their counter stating that the miscellaneous petition is not maintainable as this objection has been raised in the counter statement to the main application and to file this instant miscellaneous petition at this belated time is only to delay the matter. The rectification application has been filed before the Hon?ble High Court of Delhi in accordance with the provisions of the Trade & Merchandise Marks Act, 1958. As the parties are same, the trade marks are same, the evidence relied on by both the parties are common and that the provisions of Order 2 rule 3 of Code of Civil Procedure 1908 permits to join all the causes of action and to file it as a single application. This Appellate Board is not bound by the provisions of the Code of Civil Procedure but shall be guided by the principles of natural justice and that this Board shall regulate its own procedure. The instant miscellaneous petition is therefore frivolous and baseless.


4. We have heard Shri Ajay Sahani, learned counsel for the applicant and Shri Saurabh Kapoor, learned counsel for the respondent No.1 in the Circuit Bench Sitting at New Delhi on 20th January, 2009.


5. The application has been transferred to this Appellate Board in accordance with the provisions of section 100 of the Trade Marks Act, 1999. As per the provisions of section 100 of the Act, the Board shall proceed with the matter either de novo or from the stage it was so transferred. The rectification application has been filed before the Hon?ble High Court, Delhi and the same has been admitted by the said Court. Now at this stage, we cannot go into the maintainability of the application.


6. Section 92 of the Trade Marks Act, 1999 is very clear that this Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908, but shall be guided by the principles of natural justice and subject to the provisions of the Act and the Rules made thereunder and it shall have powers to regulate its own procedure. The application has been filed before the High Court of Delhi and the same has been admitted as per the provisions of Order 2 rule 3 of Code of Civil Procedure, 1908 as that Code is applicable to High Courts. We, therefore, cannot go into the aspect as to whether two separate applications are to be filed with separate fees. The contention of the counsel for petitioner was answered by the respondent No.1 that necessary fees for two applications as per the High Court Fees Rules was paid and on verification we were also satisfied. We find that the petitioner has raised this as a preliminary issue in the counter sta

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tement to the application and to file this petition after such a long delay only shows the intentions of the petitioner to delay the proceedings. 7. We are of the view that no case has been made out for allowing the miscellaneous petition. We therefore dismiss the miscellaneous petition with no order as to costs. We direct the Registry to post the main matter during the next Circuit Bench at New Delhi.
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