Delhi High Court: A rectification petition was filed seeking cancellation and removal of respondent 1’s trademark ‘DOLMA AUNTY MOMOS’ registered in Class 30 on 24-09-2018 in application dated 02-04-2018 on a proposed to be used basis. Anish Dayal, J., held that the trademark of respondent 1 be cancelled and removed from the Trade Marks Register same should accordingly be rectified due to trademark infringement.
Dolma Tsering, the proprietor of Dolma Aunty Momos, established her business in Delhi’s Lajpat Nagar in 1994, specializing in Tibetan delicacies, particularly momos. By 2021, she expanded to operate multiple outlets across Delhi-NCR, garnering a strong reputation for her quality products and services. The petitioner encountered unauthorized use of her trade name, Dolma Aunty Momos, by individuals selling identical products. The respondent obtained a trademark registration identical to the petitioner’s established trade name, prompting the petitioner to file a rectification petition under Section 57 of the Trade Marks Act.
Counsel for the petitioner argued that she owned the registered trademark ‘DOLMA AUNTY MOMOS’ applied on 20-04-2022, and granted on 17-11-2023. Additionally, she had another pending trademark application under Class 43.
Despite receiving service, the respondent failed to appear in court, leading to an ex-parte proceeding. The petitioner provided substantial evidence of her longstanding use of the trademark and the reputation she had built around it. The court noted the petitioner’s unrebutted claims and accepted allegations of non-use by the respondent. After meticulous examination, the Court recognized a prima facie case in favor of the petitioner.
Thus, the Court granted the rectification petition, directing the Trade Marks Registry to cancel and remove the impugned trademark ‘DOLMA AUNTY MOMOS’ from the register.
[Dolma Tsering v. Akram Khan, 2024 SCC OnLine Del 1825, decided on 06-03-2024]
Advocates who appeared in this case :
Mr. Soumil Karl Gonsalves, Advocate for petitioner
None for respondents
