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Judgment
S. Jagadeesan, J
The petitioner filed the rectification petition C.O. 23/1997 on the file of the High Court of Delhi, New Delhi, for the removal of the first respondent's
registered trade mark No. 483715 in class 24 by way of rectification.
The first respondent raised a preliminary objection with regard to the jurisdiction of the Delhi High Court. By order dated 5.3.1999, the learned
judge of the Delhi High Court directed to list the case on 2.8.1999 for arguments on the preliminary issue. On 2.8.1999, the matter was adjourned to
18.9.1999. However, the matter was not heard till April, 2003 and ultimately by order dated 5.12.2003, the C.O. No. 23/1997, was transferred to this
Appellate Board by virtue of Section 100 of the Trade Marks Act, 1999.
There is no dispute that the first respondent registered their trade mark with the Trade Marks Registry at Bombay and their main office is at Delhi.
In view of the preliminary objection raised by the learned counsel for the first respondent, we do not think there is any need to traverse the facts in
detail. The only contention of the learned counsel for the first respondent is in view of Section 3(d) of the Trade and Merchandise Marks Act, 1958,
only the Bombay High Court has jurisdiction and the petition ought to have been filed by the petitioner before the Bombay High Court. Since the Delhi
High Court has no jurisdiction, the petition is liable to be dismissed on the ground of want of territorial jurisdiction.
The learned counsel for the petitioner however contended that the first respondent filed a suit against the petitioner in the Delhi High Court in Suit
No. 25-27/1995 and as such, the petitioner filed the rectification petition before the Delhi High Court since both must be tried together.
In fact, the petitioner in their reply to the preliminary objection has stated as follows:
It is further submitted that if the suit filed by the respondent No. 1 would not have been pending before this Hon'ble Court, then, the objection, could
have a little bit of substance. .........
When the first respondent has registered their trade mark with the Trade Marks Registry at Bombay, as per Section 3(b) of the Act, the High Court
within the limits of whose appellate jurisdiction the office of the Trade Marks Registry within whose territorial limits the principal place of business in
India of the proprietor of the impugned trade mark is situated would have the jurisdiction to entertain the petition.
In exercise of power conferred by Section 5 of the Act, the Central Government has established the Trade Marks Registry with its head office at
Bombay and branch offices at each of the places, namely, Calcutta, Delhi, Madras and Ahmedabad. Section 3 read with Section 5 of the Act
therefore, gives no room for doubt that only the Bombay High Court has jurisdiction to entertain this rectification petition. We are fortified with our
view by the judgment of the Punjab and Haryana High Court in the case of Vikas Manufacturing Company v. Bharaj Manufacturing Company - 1981
PTC 87 P&H ,wherein, it has been clearly held that the High Court within whose appellate jurisdiction the office of the Trade Marks Registry
referred to in Section 3(b) is situated would have the jurisdiction. This Appellate Board also had an occasion to deal with the same issues in the case
of Prashant Sharma v. Assistant Registrar of Trade Marks and Anr., reported in 2004 (29) PTC 742, wherein, this Board held that the filing of the
appeal in a High Court which is without jurisdiction is bad in law ab-initio and continued to be so and no amount of transference of jurisdiction in the
IPAB by virtue of Section 100 read with Section 159(4) of the Trade Marks Act, 1999 can clothe it with legality.
Following the same, we are of the view that TRA/134/2004 is liable to be rejected with an option to the petitioner to either present the same before
the Trade Marks Registry at Bombay or file afresh before this Appellate Board.
Accordingly, the T.R.A. is dismissed.