Fact
This case is about a company called Triumph Designs Limited, which is the petitioner, asking the court to cancel a trademark owned by Tube Investments of India, the first respondent, and another party. The trademark in question is “Triumph,” registered under number 135253 in class 12, which covers cycles that are driven only by feet, like basic bicycles.
The main reason the petitioner wants this cancellation is because the respondent has not used the mark at all for a very long time. The petitioner is a well-known company from the United Kingdom that makes motorcycles and is part of a group including Triumph Motorcycles Limited and Triumph Motorcycles (India) Private Limited. They all use the “Triumph” mark for motorcycles. The petitioner says they have been using “Triumph” since 1886 in the UK, and over time, it has become famous worldwide, including in India, with good reputation and sales. They have registered the mark in India and many other countries for motorcycles. In India, they have used it continuously and advertised it a lot, leading to high sales.
The petitioner found out about the respondent’s old registration, which dates back to September 28, 1950, but claims there is no proof the respondent ever used it for bicycles. To support this, the petitioner showed internet search results showing no evidence of use. They argue that this unused mark is just blocking them from fully using their own mark and should be removed under the law because of non-use.
Procedural Detail
The petitioner filed this application under Section 47 of the Trademarks Act, 1999, which allows for the removal of a registered trademark if it has not been used. The case number is IPDATM/30/2023, and it was heard in the Intellectual Property Rights Division of the High Court at Calcutta’s Original Side.
Dispute
The main fight here is whether the respondent’s trademark “Triumph” for foot-driven cycles should be canceled because it has not been used for over 75 years. The petitioner says yes, because non-use for five years or more means it can be removed under the law, and they provided proof like internet searches showing no activity. They also say this old unused mark is stopping the trademark office from letting them expand their own use. The respondent says no, arguing that the petitioner is not a “person aggrieved” under the law, meaning they are not really hurt by this mark.
The respondent points out that the petitioner has many registrations themselves that they do not use, like for mopeds or scooters, so they are being hypocritical and just want to grab the mark as a business rival. This, they say, is unfair and against public interest. The dispute boils down to whether the petitioner qualifies to ask for cancellation, if non-use is proven, and if there are any excuses for the non-use.
Reasoning
This case focuses on the rules for removing a trademark that is not being used, as set out in Section 47 of the Trademarks Act, 1999. This section says that a registered trademark can be removed if someone who is aggrieved applies, and shows either that it was registered without any real plan to use it and it was never used, or that it was not used for a continuous five years plus three months before the application. There is also a part about special reasons for non-use, like legal restrictions, that might excuse it.
The court explains that three main things need to be true for removal: the applicant must be a person aggrieved, there must be no use for at least five years and three months before applying, and no special circumstances explain the non-use. To explain this, the court refers to a case called Kellogg Company vs. Pops Food Products (P) Ltd., 2018 SCC OnLine Del 6562, decided by the Delhi High Court.
In that case, the court said that for removal due to non-use, these three conditions must be met, and the use has to be real and commercial in the right category of goods. Here, the court looked at the records and saw that the respondent got the mark in 1950 but showed no proof of using it for 75 years, which is way more than the five-year limit. The court says use must be genuine, meaning actual sales or promotion in the market for bicycles, and there is no explanation from the respondent for why they did not use it.
To support this point about what counts as genuine use, the court brings up two more cases. One is Russell Corp Australia PTY Limited vs. Ashok Mahajan And Another, (2023) SCC OnLine Del 4796, also from the Delhi High Court. In that judgment, the court discussed how non-use means the mark must be taken off the register if there is no evidence of commercial activity, and internet searches or lack of sales records can prove non-use.
The other is Fedders Llyod Corporation Ltd. & Anr vs. Fedders Corporation & Anr., ILR (2005) I Delhi 478, again from Delhi, where the court said that if a mark is registered but not used for years without reason, it blocks others and should be removed to keep the register clean. In this case, the court applies these ideas by saying the respondent’s claim of use is empty, with no documents, so non-use is basically admitted.
Person Aggrieved
Now, on whether the petitioner is a “person aggrieved,” the respondent said no, because the petitioner is just a rival trying to corner the market and has unused marks themselves. But the court disagrees, using a key Supreme Court case: Hardie Trading Ltd. vs. Addisons Paint & Chemicals Ltd., (2003) 7 SCC 92. In that judgment, the Supreme Court explained that “person aggrieved” has different meanings depending on the section.
For non-use under Section 47 (which was Section 46 in the old act, but similar), it is narrower, but for correcting wrong entries under Section 56, it is broader to keep the register pure for public interest.
The court quotes paragraphs 30 to 32, where the Supreme Court says for non-use, the person must have a real interest, like being in the same trade, but for wrong registrations, anyone in the trade or public can apply.
Here, the court says the petitioner is aggrieved because they are in a related field—vehicles like motorcycles—and the unused mark blocks them. The petitioner’s own non-use of some marks does not matter, as the law focuses on the mark in question. The court rejects the respondent’s argument that the petitioner is opportunistic, saying the law allows rivals to apply if non-use is clear.
Decision
The court allowed the petitioner’s application. It ordered that trademark number 135253 for “Triumph” in class 12 be canceled and removed from the register because of proven non-use without any excuse. The court found the petitioner was a person aggrieved, the non-use was for far more than five years, and no special circumstances existed. The case IPDATM/30/2023 was decided in favor of the petitioner.
Case Details
- Case Title: Triumph Designs Limited vs Tube Investments of India and Anr
- Order Date: 25th September, 2025
- Case Number: IPDATM/30/2023
- Name of Court: High Court of Calcutta
- Name of Hon’ble Judge: Justice Ravi Krishan Kapur
Disclaimer
The information shared here is intended to serve the public interest by offering insights and perspectives. However, readers are advised to exercise their own discretion when interpreting and applying this information. The content herein is subjective and may contain errors in perception, interpretation, and presentation.
Written By: Advocate Ajay Amitabh Suman, IP Adjutor [Patent and Trademark Attorney], High Court of Delhi
