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Leave of Court under Section 124 of Trademarks Act 1999, Post Filing of Rectification Petition

The interplay between the Trademarks Act of 1999 and the legal procedures governing trademark disputes often raises complex questions. One such question, which came before the Hon'ble High Court of Delhi, pertains to the timing of filing a rectification petition and the necessity of obtaining leave of court under Section 124(1)(ii) of the Trademarks Act. This article delves into the recent judgment of the Delhi High Court in the context of TM 1111/2016 and examines the implications of filing a rectification petition before the court addresses the validity of the defendant's mark.

In TM 1111/2016, the plaintiff alleged trademark infringement by the defendant with respect to the VENUS trademark. The defendant responded by questioning the validity of the VENUS mark in a written statement. As per Section 124(1)(ii), proceedings must be delayed for three months to allow the court to determine the validity of the trademark in question.

The Controversy:
However, in an interesting turn of events, the defendant filed a rectification petition before it obtained the leave of Court under Section 124 of Trademarks Act 1999. This action prompted a legal debate on whether such a rectification petition, filed prior to the court framing any issues related to the trademark's validity, should be deemed maintainable.

The Precedent:
The petitioner relied on a Division Bench decision of the Delhi High Court in (2010) 43 PTC 479, titled "Puma Stationer P. Ltd. Vs. Hindustan Pencil Ltd." In this case, the court approved the earlier decision in AIR 1985 Del 258, "Elofic Industries (India) Vs. Steel Bird Industries." Notably, in these cases, the rectification petition was filed simultaneously with a written statement before any issue regarding trademark validity was framed.

The Delhi High Court's Ruling:
The Hon'ble High Court of Delhi, in light of the Puma Stationer Division Bench judgment, held that the rectification petition cannot be dismissed as not maintainable solely because it was filed before the court framed any issues regarding the validity of the VENUS mark.

The Concluding Note:
The court there fore, by necessary implication, ruled that leave under Section 124 of the Trademarks Act 1999 can be obtained after filing a rectification petition as well, and a rectification petition cannot be denied solely on the basis that such leave was not obtained prior to filing.

Case Law Discussed:
Case Title:Amrish Aggarwal Vs Venus Home Appliances
Date of Judgement:27/09/2023
Case No. C.O. (COMM.IPD-TM) 258/2022
Neutral Citation No: 2023:DHC:7127
Name of Hon'ble Court: High Court of Delhi
Name of Hon'ble Judge: C Hari Shankar , H J.

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 Trademark Attorney
Email: [email protected], Ph no: 9990389539

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