Z.S.Negi, J. - (1.) THE above rectification application is for the removal of trade mark, No. 942022 dated 24.7.2000 in class 12 in the name of Respondent No. 1 from the Register of Trade Marks or rectification of the Register Under Section 47/57 of the Trade Marks Act, 1999 (hereinafter referred to as the Act).
(2.) PENDING disposal of the rectification application, the Respondent No. 1 filed an Interlocutory petition. M.P. No. 132/2007, seeking rejection of the application on the ground that the applicant cannot avail the benefit of provisions of Section 125 of the Act as in the present case jurisdiction to entertain the application is conferred by Rule 92 of the Trade Marks Rules. 2002 (hereinafter referred to as the Rules) only on the Registrar of Trade Marks and not on this Appellate Board. It is the case of Respondent No. 1 that an application to the Registrar Under Section 47, 57, 68 or 77 of the Act for making, expunging or varying of any entry relating to a trade mark or collective trade mark or certification trade mark in the register shall be filed on Form TM -26 or Form TM -43, as the case may be, accompanied by statement in triplicate setting out fully the nature of applicant's interest, the facts upon which he bases his case and the relief which he seeks and where the applicant is not the registered proprietor of the trade mark in question, the application and statement aforesaid shall in triplicate be left at the Trade Marks Registry. The Respondent No. 1 has submitted that in the present application, the provisions of Rule 92 of the Rules will apply as there was no litigation pending between the parties herein to attract the provisions of Section 125 of the Act. The Petitioner to the Interlocutory Petition has averred therein that the issue of jurisdiction raised by it should be treated as the preliminary issue and the same may be decided prior to making any proceedings in the matter.
(3.) THE applicant, which is the Respondent No. 1 in the Interlocutory Petition, has filed its reply to the said petition refuting the averments/submissions made in the petition. It has denied that the rectification application has wrongly been filed before the Appellate Board and on the contrary it has asserted that the application in question has been filed before the right forum. In support of its assertion, the applicant to the rectification application has submitted that the statute itself provide option Under Sections 47 and 57 of the Act to the person aggrieved to file rectification application either before the Registrar of Trade Marks or before the Intellectual Property Appellate Board and thus the applicant to the rectification application has rightly chosen to file such application before the Appellate Board.;