S. Jagadeesan, Chairman - (1.) THE Appellant has preferred this appeal against the order of the Assistant Registrar of Trade Marks, dated 8.12.1994, dismissing an interlocutory application filed by the appellant raising by way of preliminary objection, the maintainability of the rectification proceedings initiated by the Registrar. THE facts of the case are as follows:
(2.) The appellants are the registered proprietors of Trade Mark "44" registered under No. 418718, in class 23. The first respondent herein filed rectification application under Section 56(1) of the Trade and Merchandise Marks Act, 1958, (hereinafter referred to as the Act), for removal of the registration of the appellant, before the Registrar of Trade Marks, Ahmedabad. It was numbered as AMD-7. After due notice, the appellant filed interlocutory application to dismiss the rectification petition on the ground that the Registrar has no jurisdiction to entertain the rectification application in view of the pendency of the suit on the file of the Delhi High Court. Section 107(1) read with Section 108 of the Act envisages that where civil suit is pending in the High Court for injunction or passing of, the rectification proceedings can be filed only in the High Court and not before the Registrar. This being a statutory prohibition or bar for the Registrar to entertain the rectification proceedings in a pending suit before the Court, the present rectification proceedings initiated by the first respondent cannot be proceeded with before the Registrar. After hearing both the counsel, the Registrar of Trade Marks, under the impugned order had dismissed the interlocutory application on the following grounds: (1) In the written statement, the first respondent did not question the validity of registration. (2) The denial of the first respondent either with regard to the proprietorship of the appellants or with regard to the validity of the registration cannot be termed as "questioned" the validity of registration as there is no positive ground of challenge stated therein against the validity of registration of the appellant's registered trade mark. (3) Such denials did not raise any question for determination by the courts and the Tribunals. Consequently, the Registrar held that he has got jurisdiction to entertain the rectification proceedings. Aggrieved by the same, the appellant preferred an appeal in Appeal No. 8/1995 on the file of the High Court of Gujarat at Ahmedabad, which was transferred to this Board pursuant to Section 100 of the Trade Marks Act, 1999.
(3.) THE learned Counsel for the appellant Shri R.R. Shah, was heard and none represented the respondents.;