The present case revolves around a dispute over the registration of the
DHARIWALWOOLTEX device mark. The appellant asserts that they have been using
this mark since 1 January 1984 and have provided evidence of such usage starting
from 15 May 1984. The pivotal issue is whether the appellant's delayed
submission of evidence should be held against them, leading to the rejection of
their application for registration. This article critically examines the
appellant's claims, the legal principles governing such cases, and the fairness
of the Joint Registrar's decision.
The appellant's contention is that, while the opportunity to present evidence of
usage of the DHARIWALWOOLTEX device mark emerged 13 years after filing the
application, they cannot be faulted for not having the material to evidence the
usage at the time of filing. The appellant argues that this delay in submitting
evidence should not serve as grounds for dismissing their claim of user,
especially given the circumstances.
In matters of trademark registration, the burden of proof lies with the
applicant to demonstrate the usage of the mark in commerce. Trademark law
recognizes the importance of actual usage to establish rights over a mark and
prevent trademark squatting. The delay in providing evidence of use, however,
may lead to skepticism about the veracity of the claim.
Analyzing the Appellant's Argument
The appellant's argument rests on the premise that they were unable to provide
evidence of usage from 1 January 1984 due to the lack of material at that time.
This assertion raises questions about the plausibility of their claim and the
credibility of the evidence presented. It is essential to assess whether the
appellant's explanation for the delay is reasonable and whether it affects the
veracity of their claim.
Joint Registrar's Decision
The Joint Registrar's rejection of the appellant's claim of user is primarily
based on the assertion that the appellant filed a false claim of user. This
decision appears to hinge on the assumption that the appellant's delay in
presenting evidence implies a lack of genuine user of the mark. However, this
interpretation might overlook legitimate reasons for the delay, such as the
unavailability of records or the practical challenges of gathering historical
Claiming incorrect claim of user does not necessarily results into cancellation
of registered Trademark. In this case, though the registered proprietor claimed
a user, which is not supported by actual claim of use. The Hon'ble Court allowed
the Trademark to remain on the register with amended claim of user, for which
actual document of user was filed by the registered proprietor.
Case Law Discussed:
Case Title: Dhariwal Wooltex Vs British India Corporation Limited and another
Date of Judgement:16.08.2023
Case No. CA (Comm IPD-TM) 17/2022
Neutral Citation No: 2023: DHC: 5817
Name of Hon'ble Judge: C Hari Shankar
Name of Court: Delhi High Court
Information and discussion contained herein is being shared in the public
Interest. The same should not be treated as substitute for expert advice as it
is subject to my subjectivity and may contain human errors in perception,
interpretation and presentation of the fact and issue involved herein.
Written By: Advocate Ajay Amitabh Suman
, IP Adjutor - Patent and
Email: [email protected]
, Ph no: 9990389539