S. Jagadeesan, J. (Chairman) - (1.) THE petitioner filed the rectification petition C.O. 23/1997 on the file of the High Court of Delhi, New Delhi, for the removal of the first respondent's registered trade mark No. 483715 in class 24 by way of rectification.
(2.) The first respondent raised a preliminary objection with regard to the jurisdiction of the Delhi High Court. By order dated 5.3.1999, the learned judge of the Delhi High Court directed to list the case on 2.8.1999 for arguments on the preliminary issue. On 2.8.1999, the matter was adjourned to 18.9.1999. However, the matter was not heard till April, 2003 and ultimately by order dated 5.12.2003, the C.O. No.23/1997, was transferred to this Appellate Board by virtue of Section 100 of the Trade Marks Act, 1999. There is no dispute that the first respondent registered their trade mark with the Trade Marks Registry at Bombay and their main office is at Delhi. In view of the preliminary objection raised by the learned counsel for the first respondent, we do not think there is any need to traverse the facts in detail. The only contention of the learned counsel for the first respondent is in view of Section 3(d) of the Trade and Merchandise Marks Act, 1958, only the Bombay High Court has jurisdiction and the petition ought to have been filed by the petitioner before the Bombay High Court. Since the Delhi High Court has no jurisdiction, the petition is liable to be dismissed on the ground of want of territorial jurisdiction.
(3.) THE learned counsel for the petitioner however contended that the first respondent filed a suit against the petitioner in the Delhi High Court in Suit No. 25-27/1995 and as such, the petitioner filed the rectification petition before the Delhi High Court since both must be tried together.;