Delhi High Court: Stating that mere writing of a letter of representation cannot furnish an adequate explanation for the delay, Jyoti Singh, J., expressed that, it is a settled principle of law that in writ jurisdiction, the Court would not ordinarily assist those who are lethargic and indolent.
In the present matter, petitioner sought a writ of Certiorari quashing the advertisement with respect to an application in Class 5 filed by Midas Hygiene Industries (P) Ltd./respondent 3 for registration of trademark LAXMAN REKHA (label) and a further direction to the Registrar of Trade Marks to re-advertise the application.
Respondent 3 filed an application for registration of trademark LAXMAN REKHA (label) and a suit for perpetual injunction, infringement of copyright, passing off, delivery etc. against the petitioner was also filed in respect of trademark LAXAMN REKHA.
Injunction against the petitioner was granted against the petitioner. The said order was vacated before the Division Bench, however, Supreme Court set aside the order of the Division Bench and restored the order granting injunction. The suit was transferred to the District Courts on account of pecuniary jurisdiction.
Respondent 3 preferred an application before the Trial Court seeking amendment of the plaint and application filed copy of the registration certificate, whereby respondent 3’s trademark LAXMAN REKHA was registered in Class 5.
It was undisputed that the impugned advertisement was published in the Mega Journal in 2003 and trademark of respondent 3 was registered in 2005. As per the counter-affidavit of respondent 1 and 2, the mark was renewed in 2007 for 10 years. Petitioner averred that he learnt of the registration of the mark in 2006, when the Registration Certificate was filed by Respondent 3 along with an application for amendment in a suit pending in the District Courts, between the same parties.
In Court’s opinion, the statutory remedy available to the petitioner was to seek cancellation of the registered trademark and rectification of the Register under Section 57 of the Act. Though the petitioner failed to take recourse to the appropriate remedy available under the Statute and instead filed the present petition for the reasons best known to him.
Bench stated that it was evident that the petitioner was completely aware of the remedy available to any person aggrieved to seek cancellation of the mark and rectification of the Register under Section 57 of the Act, way back in the year 2006, but chose to remain silent and took no steps to seek cancellation of the mark and rectification of the Register, with respect to the trademark in question.
Hence, the Court expressed that,
This Court cannot, by entertaining the present writ petition, create an alternate mechanism to challenge the registration of a trademark, though indirectly, against the legislative intent.
If there is a delay on the part of the Petitioner ,which is not satisfactorily explained, the High Court may decline to exercise the writ jurisdiction.
Lastly, the Bench held that in the present matter, the petitioner took no action, except to correspond with the Registrar and admittedly in the meantime, statutory rights were accrued in favour of respondent 3, hence the Court was not persuaded to exercise the writ jurisdiction in favour of the petitioner.[Sudhir Bhatia Trading AS V. Bhatia International v. Central Government of India, 2022 SCC OnLine Del 1491, decided on 19-5-2022]
Advocates before the Court:
For the Petitioner:
Mr. Shailen Bhatia, Ms. Zeba Khan and Ms. Muskaan Arora, Advocates.
For the Respondents:
Mr. Harish V. Shankar, Central Government Standing Counsel with Ms. S. Bushra Kazim and Mr. Srish Kumar Mishra, Advocates for UOI/R-1 & R-2.
Mr. Sanjeev Sindhwani, Senior Advocate with Mr. Sanjay Dua, Advocate for R-3.