In a Civil Suit proceeding pertaining to Intellectual
Property Right in India, when ever matter is listed before the Joint Registrar
or Court for purpose of evidence of the parties, there is normal tendency to
summon the registrar of trademark under Order 16 Rule 1 and 2 CPC in order to
prove the registered trademark of the parties or orders passed in relation to a
trade mark application. The order OF THE Hon'ble High Court of Delhi, which I am
discussing here in below, is answering this aspect. This order has now become
final, as this order has not been challenged by the plaintiff.
This is the order dated 28.04.2008 passed by Hon'ble Justice Shiv Narayan
Dhingra, Delhi high Court in application of the plaintiff under Order 16
Rule 1 & 2 CPC (IA No. 4928/2008 in Suit bearing CS(OS) No. 260/2004) titled as
Sona Spices Vs Soongachi Tea Industries.
The Suit relates to intellectual property right in relation to
trademark SONA. The Suit was filed by the plaintiff before the Hon’ble High
Court of Delhi in the year 2004.
Issues in the matter were framed on20.12.2005. There after the suit
was proceeded for the plaintiff’s evidence. On 19.12.2016 the plaintiff was
allowed to file list of witnesses and statement of their witnesses in
examination in chief on affidavits within three weeks and thereafter, for
presenting their witnesses for cross-examination on behalf of the defendants on
the date/s to be fixed by the Joint Registrar.
In this circumstances, the plaintiff moved an application under
Order 16 Rule 1 & 2 CPC (IA No. 4928/2008 in the subject matter Suit bearing
CS(OS) No. 260/2004), seeking to summon the Registrar of Trade Marks Registry,
Boudhik Sampada Bhawan, Dwarka, New Delhi to prove registered trade mark of the
Plaintiff No. 367241 and to prove the NOC dated 22.07.2003 issued by the
Registrar of Trade Marks, New Delhi.
The Relevant provision of Order 16 Rule 1 & 2 CPC is being
reproduced as here in below:
“1. List of witnesses and summons to witnesses.-(1) On or before
such date as the court may appoint, and not later than fifteen days after
the date on which the issues are settled, the parties shall present in court
a list of witnesses whom they propose to call either to give evidence or to
produce documents and obtain summonses to such persons for their attendance in
court.
(2) A party desirous of obtaining an summons for the attendance of
any person shall file in court an application stating therein the purpose for
which the witness is proposed to be summoned.”
The Hon’ble High Court of Delhi, vide order dated 24.04.2008 passed
in plaintiff’s application under Order 16 Rule 1 & 2 CPC (IA No. 4928/2008 in
the subject matter Suit bearing CS(OS) No. 260/2004), was pleased to dismiss the
said application of the plaintiff with the following reasoning:
“The Registrar of Trade Marks is a public authority discharging
functions under the Trade Marks Act of registration of trade marks and all
orders and certificates issued by the Registrar of Trade Marks can be proved by
filing certified copies of the orders. The Trade Marks Registrar is not required
to be summoned for proving the trade mark certificates and orders passed by it.
Ifthis is allowed, Registrar will in fact standing in the Court and shall not
be discharging any public function because everyday several trade marks matters
are fixed in this Court which are in the evidence stage. I, therefore, consider
that there is no necessity of summoning the Registrar of Trade Marks to prove
trade marks registration certificate or order passed by him or NOC issued
byhim. Filing of certified copies is sufficient and will serve the purpose. The
application is hereby dismissed.”
It is submitted that the Hon’ble Justice must have moved on the
presumption that the documents pertaining to records of Trade Marks and Orders
passed therein are in the nature of public document. The Hon’ble Court rightly
recorded in the order that the Registrar of Trade Marks is a public authority
discharging functions under the Trade Marks Act.
It is submitted that Provision of Section 76 of the Indian Evidence
Act 1872 provides that the public document can be proved by furnishing Certified
Copies of the same. The relevant provision of Section 76 of the Indian Evidence
Act 1872 is being produced as herein below:
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