Delhi High Court: In a case wherein, the rectification petition was filed by the petitioner, Vimal Agro Products Private Limited under Section 57 of the Trade Marks Act, 1999 (‘the TM Act’) for cancellation of trade mark ‘SCHEZWAN CHUTNEY’, Prathiba M. Singh, J., opined that the Division Bench of this Court had prima facie observed that the mark had acquired secondary significance and moreover, the issue of jurisdiction would also have to be considered first, as the petitioner in its application under Section 124 of the TM Act had clearly pleaded that the Bombay High Court had the jurisdiction. Thus, the Court stated that it was not inclined to stay the impugned trade mark registration for the mark ‘SCHEZWAN CHUTNEY’.
The trade mark ‘SCHEZWAN CHUTNEY’ was registered by Respondent 1, Capital Foods P. Ltd. and the said trade mark was related to a large number of food products including chutneys, salad, dressings, sauces, snack food, etc.
The petitioner asserted that the ‘SCHEZWAN CHUTNEY’ was descriptive and a generic mark. The petitioner also alleged that Respondent 1 did not reply to the objections raised by Respondent 2, Registrar of Trade Marks under Section 9 of the TM Act and since, no reply was filed, the said application was abandoned vide order dated 29-03-2016. However, despite this, the Registrar granted the registration without addressing the objection under Section 9 of the TM Act.
The Court opined that the issue that whether Respondent 1’s mark ‘SCHEZWAN CHUTNEY’ was descriptive or generic, was in consideration before the Court and was already pending before the Division Bench. Further, the Division Bench of this Court, in its order dated 25-01-2023 had at the prima facie stage observed that Respondent 1’s mark had acquired secondary significance. Moreover, the Court opined that it would also have to consider the issue of jurisdiction as the petitioner in its application under Section 124 of the TM act had clearly pleaded that Bombay High Court had the jurisdiction to decide the said cancellation proceedings.
Thus, the Court stated that it was not inclined to stay the impugned trade mark registration for the mark ‘SCHEZWAN CHUTNEY’ and stated that the Respondent 1 should file the reply on the issue of territorial jurisdiction within four weeks and the same should be considered at the outset.
The matter would be next listed before the Court on 21-02-2024.
[Vimal Agro Products P. Ltd. v. Capital Foods P. Ltd., 2023 SCC OnLine Del 6548, Order dated 11-10-2023]
Advocates who appeared in this case :
For the Petitioner: Sachin Gupta, Ajay Kumar, Manan Mandol, Rohit Pradhan and Gaurangi Sharma, Advocates;
For the Respondent: Chander M Lall, Senior Advocate with Hiren Kamod, Nishad Nadkarni, Asif Navodia, Khushboo Jhunjhunwala, Shourya Pandey, Jaanvi Chopra and Abhinav Bhallab, Advocates
Buy Trade Marks Act, 1999 HERE
