Delhi High Court: A review petition was filed seeking a review of order dated 21-01-2020 passed by the IPAB wherein a rectification petition was allowed filed by respondent 1 seeking rectification of the register of trademarks by removal, therefrom, of the mark, registered in favour of the petitioner. C Hari Shankar, J., sets aside the impugned order on the ground of violation of the principles of natural justice and the requirement of due opportunity to the petitioner to contest the rectification petition along with non-compliance with Rule 16 of the IPAB Rules, which required the date of hearing of the IPAB to be notified to both parties.
Yashoda Super Speciality Hospital & Heart Institute happens to be one of the leading hospitals in Ghaziabad. The first was that the petitioner had, in its application dated 22-02-2005, for registration of the mark, provided the Tis Hazari address, as the “address for service”. The application also provided, however, the Yamuna Vihar address as the address of the petitioner’s proprietor. Subsequently, the petitioner informed the Registrar of Trade Marks that its Constituted Attorney had changed and that the address of the new Trademark agent, which was to be treated as the petitioner’s address for service. Instead of effecting service at either of these addresses, communications were addressed by the Intellectual Property Appellate Board to the Yamuna Vihar address of the proprietor of the petitioner as provided in its application seeking registration of the mark.
Counsel for appellant submitted that as per Rules 17 and 182 of the Trade Marks Rules, 2017, is that once an address for service is provided by an applicant to the Trade Marks Registry, that address for service has necessarily to be the address at which all communications are addressed to the said applicant, in connection with any proceeding under the Trade Marks Act, which would include rectification proceedings under Section 573 of the Act thereof. In as much, as no communication was ever addressed to the petitioner either at the address for service provided in the application seeking registration of the trade mark or at the new address for service reflected in the communication dated 11-11-2014, thus, it cannot be said that service either of the rectification petition filed by the respondents or of any communication from the IPAB in that regard could be said to have been made on the petitioner. Thus, the impugned order was passed ex parte under mistaken impression that the petitioner was duly served.
The Court noted that there was nothing to show that the said fresh notice was ever issued or served on the petitioner. No document, evidencing any attempt at service having been made on the petitioner, in accordance with the direction to that effect, as passed by the IPAB on 10-12-2018 are on record. Had the petitioner refused to accept service of the notice issued by IPAB on 8-04-2019, it goes without saying that a copy of the postal endorsement in that regard would also have been enclosed with the communication dated 24-07-2020. Thus, IPAB, therefore, was clearly in error in observing, in its subsequent order dated 8-04-2019, that the petitioner had refused to accept service.
The Court further noted that IPAB confused the first abortive attempt at service of the papers relating to the rectification petition on the petitioner on 22-03-2018 with the service of the papers as directed by the order dated 08-04-2019. The record revealed that there was no compliance with the direction passed by the IPAB in its order dated 08-04-2019, for fresh service to be effected on the petitioner. which could convince the Court that the observation, in the subsequent order dated 8-2019, of the IPAB that the petitioner had refused to accept service, was not, in fact, incorrect. Therefore, the IPAB, under an erroneous presumption of fact that the petitioner had been duly served, proceeded, on 21-01-2020, to decide the rectification petition filed by the respondents ex parte against the petitioner.
The Court remarked that the facts of the case, as well as the pre-eminent public interest involved in ensuring that justice is done at all costs, therefore, a case for review of the order dated 21-01-2020, within the meaning of Rule 23 of the IPAB Rules, does exist.
The Court held that the petitioner’s hands are not so unclean as to disentitle him to relief in a case such as this, in which IPAB proceeded to disenfranchise the petitioner’s mark ex-parte, fifteen years after it was registered.
[Yashoda Hospital and Research Center Limited v Yashoda Super Specialty Hospital, 2023 SCC OnLine Del 7552, decided on 29-11-2023]
Advocates who appeared in this case :
Mr. Abhimanyu Bhandari, Ms. Charu Mehta, Mr. Rishi Raj Sharma and Mr. Kunal Khanna, Advocates for appellant
Mr. Sandeep Sethi, Sr. Advocate with Mr. Saikrishna Rajagopal, Ms. Anu Paarcha, Ms. N. Parvati, Mr. Abhinav Rao, Ms. Riya Kumar and Mr. Sumair Dev, Advs. for R-1 Mr. Harish Vaidyanathan Shankar, CGSC with Mr. Srish Kumar Mishra, Mr. Alexander Mathai Paikaday and Mr. Krishnan V., Advs. for Registrar of Trade Marks for R-2
