M.H.S. Ansari, J. (Chairman) - (1.) INSTANT Application is filed for rectification of the register under Sections 47, 57 & 125 of the Trade Marks Act 1999 (hereafter for brevity's sake referred to as the Act).
(2.) Applicant is a company incorporated under the Company's Act. The relief prayed for the instant application is The entry relating to registration No. 1092367 in class 12 for trade mark 'INDO SHELL' be removed / expunged / rectified from the Register of Trade Marks. Although several grounds and contentions have been urged in the application and statement of case of the applicant, constituting the pleadings on behalf of the applicant, Shri T.R. Rajagopalan, learned senior counsel assisted by Shri A.A. Mohan, Ld. Advocate for the applicant prefaced his arguments by submitting that on behalf of the applicant one ground shall be urged based on Section 18 of Act namely that the 2nd respondent- registered proprietor cannot claim exclusive right to the Trade Mark "INDO SHELL". The 2nd respondent was never given any right to register the trade mark 'INDO SHELL' exclusively for themselves, that the 2nd respondent is not the true proprietor of the Trade Mark "INDO SHELL" within the meaning of Section 18(1) of the Act and thus the registration being in contravention of Section 18 of the Act is liable to be expunged from the register. However, after Shri R. Muthukumaraswamy, Ld. Sr. Counsel assisted by Ms. Gladys Daniel on behalf of the 2nd respondent made his submissions in reply to the aforesaid contention, Ld. Sr. Counsel Shri T.R. Rajagopalan on behalf of the applicant, in his reply arguments, raised and urged an additional ground in support of the relief as prayed for, reference to which shall be made at an appropriate stage. At this stage we may record that senior counsel for the registered proprietor waived the preliminary objection as to the maintainability of this application based on alleged non compliance with Section 124 of the Act. We may also record that since an additional ground was raised in reply arguments opportunity was afforded to the 2nd respondent and was duly availed of by their Ld. Sr. Counsel Shri. R. Muthukumaraswamy to reply to the said additional ground/contention.
(3.) WE heard learned senior counsel for the contesting parties at Chennai on 23.08.2007, 30.08.2007 and 06.09.2007.;