Bombay High Court
Le Shark Apparel Limited vs Anil Shah And 2 Ors on 14 October, 2025
Author: R.I. Chagla
Bench: R.I. Chagla
2025:BHC-OS:18797
COMMP-538-22.doc
Sharayu Khot.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
COMMERCIAL MISCELLANEOUS PETITION NO. 538 OF 2022
Le Shark Apparel Limited ...Petitioner
Versus
Anil Shah & Ors. ...Respondents
----------
Mr. Rohan Kadam, a/w Ms. Rucha Vaidya, Mr. Dominic Alvares,
Manosij Mukharjee, Ms. Pooja Gupta and Mr. Ritik Gupta i/b Ms.
Suvarna Joshi for the Petitioner.
Mr. Lakshyaved R. Odhekar a/w Mr. Omkar N. Mhasde for the
Respondents.
----------
CORAM : R.I. CHAGLA J.
Reserved on : 23rd April 2025
Pronounced on : 14 October 2025
JUDGMENT :
1. By this Commercial Miscellaneous Petition, the Petitioner
SHARAYU
PANDURANG
KHOT
is seeking rectification of the Respondents' registered Trade Mark No.
Digitally
signed by
SHARAYU
PANDURANG
466002 registered in Class 25 for, "Articles of Clothing, including
KHOT
Date:
2025.10.14
15:27:39
+0530
Boots, Shoes and Slippers, Scarves and Raincoats" under Sections 47
and 57 of the Trade Marks Act, 1999 ("the Act").
COMMP-538-22.doc
2. The brief background of material dates and events are as
under :-
(i) The trademark "LESHARK" and the device
, which is claimed by the Petitioner to
be a unique, original and fanciful portmanteau of
'Le' and 'Shark' with a unique graphic of a shark
was conceived and adopted by the predecessors of
the Petitioner in United Kingdom (Le Shark
Limited) in the year 1984.
(ii) The Petitioner's predecessor (Le Shark Limited)
was granted registration of the device mark
in the United Kingdom in Class 25
(shirts, T-shirts, jumpers, trousers) under
Registration No. UK00001218623 on 14th May
1984.
(iii) The Petitioner's predecessor (Le Shark Limited)
was granted registration for the device mark
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in the United Kingdom in Class 25
(shirts, T-shirts, jumpers, trousers) under
Registration No. UK00001219092 on 18th May
1984.
It is pertinent to note that subsequent to Le Shark
Limited, the said mark was owned by Joseph
Leshark Limited in 1988 who assigned it back to
Leshark Limited on 19th January 1995. Leshark
Limited assigned the mark to Hamsard 2353
Grabal Alok on 10th November 2005 who further
assigned the mark to the Petitioner.
(iv) The Petitioner's predecessor (Le Shark Limited)
was granted registration of the mark in
United Kingdom in Class 25 (shirts, T-shirts,
jumpers, trousers) under Registration No.
UK00001220074 on 5th June 1984.
(v) The Petitioner's predecessor (Le Shark Limited)
was granted registration of the mark
COMMP-538-22.doc
in the United Kingdom in Class
25 (shirts, T-shirts, jumpers, trousers) under
Registration No. UK00001250917 on 16th
September 1985.
(vi) The Petitioner's predecessor in the 1980's and
1990's had considerable goodwill and had its
associates / affiliates in India. The Petitioner's
predecessor through one of its affiliates Aldgate
Warehouse (Wholesale) Limited used to source its
clothing materials from manufacturers in the
Indian subcontinent.
It is pertinent to note that the Respondents
manufactured garments for Aldgate Warehouse
(Wholesale) Limited.
(vii) The Petitioner's predecessor's mark was
registered in France and Benelux in the year 1987.
(viii) Respondent No. 1 applied for registration of the
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impugned mark under
Application No. 466002 in Class 25 for articles of
clothing, including boots, shoes and slippers,
scarves and raincoats in India on a 'proposed to be
used basis' on 13th January 1987.
It is the Petitioner's case that this mark is identical
to the trademark registered by the Petitioner's
predecessor in UK under Registration No.
UK00001250917.
(ix) On 15th October 1991, the impugned mark was
granted registration by Respondent No. 3.
(x) The Petitioner's predecessor obtained registration
of the trademark in the years
1999-2001 in UK in Class 3, Class 8, Class 9, Class
14, Class 16, Class 18, Class 20, Class 21, Class 24,
Class 25, Class 26, Class 27, Class 28, Class 30,
Class 35, and Class 36.
COMMP-538-22.doc
(xi) Respondent No. 1's mark registered
under Application No. 466001 has since 13th
January 1987 been removed from the register in
India for non-renewal. It is the Petitioner's case
that this trademark is a device mark identical to
the shark device registered by the Petitioner's
predecessor in the Benelux countries.
(xii) In October 2013, the Petitioner, a joint venture
company between S.R.G. Apparel Plc and Grabal
Alok (UK) Limited (earlier known as Hamsard
2353 Ltd.) was incorporated under the laws of
United Kingdom.
It is pertinent to note that by virtue of assignment
by Grabal Alok, the Petitioner is a registered
proprietor of the trademarks ' ' and
.
COMMP-538-22.doc
(xiii) The Petitioner officially relaunched the 'LE SHARK'
brand in December, 2014.
(xiv) The Petitioner has a global presence with
worldwide sales reaching over 5 million (Rs. 44
crore) with sales on several websites such as
ASOS.com, www.tkmaxx.com, Leading Label, Tokyo
Laundry, The Hut, Amazon, Studio.co.uk, Jeansfield
etc. in the year 2014-17.
(xv) The Petitioner has promoted its products under the
brand 'Leshark' by attending exhibition and trade
shows in different countries such as China, Berlin in
the year 2014-17.
(xvi) The Petitioner filed Application No. 2904714 for
registration of its mark in India in Class
25 for Clothing, Footwear, Headgear on 17th
February 2015.
(xvii) Respondent No. 3 sent a copy of Examination
Report along with the search Report intimating the
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Petitioner about the existence of the Respondents'
trademark on 16th April 2016.
(xviii) The Petitioner filed a Reply to the Examination
Report issued by Respondent No. 3 for Trademark
Application No. 2904714 on 21st May 2016
requesting for a date of hearing.
(xix) LLP Agreement dated 1st October 2016 executed
between Anil Shah, Kiran Shah and Damji Sadiwala
forming Respondent No. 2 was executed on 7th
March 2017.
(xx) Respondent No. 1 assigned the impugned
trademark to Respondent No. 2 on 6th December
2017.
(xxi) Respondent No. 3 renewed the impugned
trademark with effect from 13th January 2018 for
another ten years on 22nd December 2017.
(xxii) Respondent No. 2 applied to Respondent No. 3 to
have its name recorded as the proprietor of the
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impugned trademark on 11th January 2018.
(xxiii) The Petitioner filed the present Petition under
Sections 18, 47 and 57 of the Act for rectifying the
entry qua Respondent No. 1's impugned trademark
on 20th March 2018.
(xxiv) Respondent No. 2 was entered as the subsequent
proprietor of the impugned registered trademark of
LE SHARK on 22nd September 2018.
(xxv) The present Rectification Petition was admitted by
the IPAB on 8th October 2018.
(xxvi) On 4th April 2021 pursuant to the Tribunal Reform
Act, 2021, the IPAB was abolished and this
Rectification Petition was transferred to this Court.
(xxvii) The Petitioner's Application No. 2904714 for
registration of mark was refused on 7th
April 2021 despite the present Rectification Petition.
(xxviii) The Petitioner filed a Review Petition No. 1201255
COMMP-538-22.doc
before the Respondent No. 3 against Respondent
No. 3's order of 7th April 2021. On 7th May 2021,
the Review Petition was heard, but the order is
pending.
3. Mr. Rohan Kadam, the learned Counsel for the Petitioner
has submitted that the impugned mark of Respondent Nos. 1 and 2
(referred to collectively as "Respondents") deserves to be expunged
under Section 47(1)(a) of the Act for want of bonafide intention to
use the impugned mark. He has submitted that there is a lack of
bonafide use upto a period of three months before the date of the
Rectification Petition. He has submitted that the absence of a
bonafide intention to use the impugned mark is borne out from the
fact that it is a mere dishonest copy and adoption of trademarks that
were registered prior in time by the Applicant's predecessor in
interest in the United Kingdom, France and the Benelux countries
and now subsist in the name of the Petitioner.
4. Mr. Kadam has further submitted that the impugned
mark deserves to be expunged under Section 47(1)(b) of the Act for
want of bonafide use for over five years since the sole proof of user
COMMP-538-22.doc
are fabricated invoices, which are even otherwise unsupported by
corroborating materials.
5. Mr. Kadam has submitted that the impugned mark is
liable to be expunged under Section 57 of the Act since it has been
fraudulently adopted and is therefore, an entry wrongly made and is
wrongly remaining on the register "without sufficient cause".
6. Mr. Kadam has referred to Section 47 of the Act and has
submitted that it is a fit case for invoking powers for expunging the
trademark under that provision. He has submitted that Section 47(1)
speaks of two situations for rectification : (i) under Section 47(1)(a),
a trademark may be rectified if there has been no bonafide intention
to use the mark and no bonafide use of the mark for a period upto
three months before the date of the Rectification Application /
Petition OR (ii) under Section 47(1)(b), a trademark may be rectified
if there has been no bonafide use during a continuous period of five
years upto a date of three months before the date of the Rectification
Application / Petition. He has submitted that in the present case both
requirements are satisfied.
COMMP-538-22.doc
7. Mr. Kadam has submitted that the absence of bonafide
intention to use is borne out from the fact that the impugned
trademark is an identical copy of Trademark No. UK00001250917
registered in the UK by the Petitioner's predecessor in interest in
1985 for the same goods. The 'Shark' graphic in the impugned
trademark is also identical to the pictorial depiction registered by
Petitioner's predecessor in title in France and the Benelux countries.
8. Mr. Kadam has submitted that in the absence of a
plausible explanation given by a party for adopting an identical mark
which is inherently distinctive and unique, the Court may presume a
dishonest intention to use the impugned mark. He has placed
reliance on Aktiebolaget Volvo of Sweden Vs. Volvo Steels Ltd. of
Gujarat (India)1 and judgment of the Calcutta High Court in Bengal
Immunity Co. Ltd. Vs. Denver Chemicals Manufacturing Co.2.
9. Mr. Kadam has submitted that the ratio in Volvo (supra)
applies in the present case. The Respondents have not pleaded any
explanation (plausible or otherwise) for having adopted an identical
1 1997 SCC OnLine Bom 578 at paras 41 and 43
2 AIR 1959 Cal 636 at paras 15 and 16
COMMP-538-22.doc
mark with identical text, shark logo and placement which was
registered by the Petitioner's predecessor abroad. He has submitted
that no alternate case of having got this artistic logo created has also
been pleaded. It is therefore ex-facie evident that the Respondents'
intentions behind obtaining registration of the same was dishonest.
10. Mr. Kadam has submitted that the Respondent No. 1 on
its website has admitted to having supplied Aldgate Warehouse, who
is the Petitioner's predecessor in interest's affiliate through whom the
clothes were sourced.
11. Mr. Kadam has submitted that the Respondents have
absolutely no explanation (plausible or otherwise) for having
adopted the impugned mark. Hence, it is evident that there is no
bonafide intention to use the said mark.
12. Mr. Kadam has submitted that the Respondents have
pleaded a case that they have built a thriving business under the
impugned mark for over 37 years. They have pleaded that since
1987, they have used the impugned mark and have generated
enormous goodwill therein. They also claim that substantial sums
COMMP-538-22.doc
have been spent on advertising and enormous sums earned through
sales. He has in particular referred to the pleaded case of the
Respondents at paragraphs 7 and 10 on pages 6-7 of the
counterstatement.
13. Mr. Kadam has submitted that there is no material to
corroborate these grandiose and sweeping claims of the Respondents.
They have not produced any certified sales figures; advertising
figures; assessment orders; and/or any promotional materials.
14. Mr. Kadam has submitted that there is nothing brought
on record by the Respondents to corroborate their claim that they
have an uninterrupted running business. This alone demolishes their
claim of having used the marks, bonafide or otherwise. The
Respondents have only produced a smattering of invoices at
Annexure D / page 80 of the counterstatement. The Respondents
have impressed upon the Court to believe that these invoices are
genuine since they have deposed to them on oath. He has submitted
that these invoices are wholly suspect and incapable of being treated
as reliable evidence. None of these invoices employ the impugned
mark as registered. Further, none of these invoices are corroborated
COMMP-538-22.doc
by delivery notes / challans pursuant thereto and/or proof of receipt
of sales proceeds et al. He has submitted that these invoices are
fabricated. To illustrate, the invoices purportedly have been issued on
13th February 2006 and 19th February 2006 and made out to one
'Isha Crafts Private Limited'. Isha Crafts Private Limited was
incorporated only in the year 2009. It is therefore, inconceivable that
any genuine invoice could have been issued three years earlier in
2006. He has accordingly, submitted that these invoices at pages 80-
81 of the counterstatement are ex-facie fabricated.
15. Mr. Kadam has submitted that fabricated invoices raise a
doubt on the authenticity and genuineness of the other invoices
produced, which are not corroborated by any evidence. That apart, it
is well settled that a litigant having relied on fabricated documents, is
entitled to be summarily thrown out by the Court at any stage of the
litigation. He has placed reliance on the judgment of this Court in
Jayant Industries Vs. Indian Tobacco Company3.
16. Mr. Kadam has submitted that apart from the present
case being a fit case for expunging the registered trademark and
3 2022 SCC Online Bom 64 paras 28-29
COMMP-538-22.doc
rectifying the Register under both Sections 47(1)(a) and 47(1)(b) of
the Act, this is also a fit case for exercising powers under Section 57
of the Act.
17. Mr. Kadam has referred to Section 57 of the Act, which
empowers the Court to take marks off the Register for 'sufficient
cause'. He has submitted that the object of this Act is to inter alia
prevent the dishonest and fraudulent registration of marks. He has
submitted that in the present case, adoption and registration of the
impugned mark is tainted with dishonesty, since it is an identical
copy of trademarks that were registered by Petitioner's predecessor in
title in Europe and the Respondents appear to have been suppliers
thereto.
18. Mr. Kadam has submitted that the circumstances of
adoption of the Respondents' impugned marks point to the real
motive i.e. to traffic in the impugned mark and to leverage the same
for illicit gain. He has submitted that this alone affords sufficient
basis for expunging the marks. He has placed reliance upon The
Matter of the Registered Trade Marks of J. Batt and Co. and In The
COMMP-538-22.doc
Matter of Carter's Application for a Trade Mark4.
19. Mr. Kadam has submitted that the Respondents have
only challenged the Petitioner's locus as an 'aggrieved person'. They
have further alleged that the Rectification Petition ought to be
dismissed for delay.
20. Mr. Kadam has referred to the law relating to 'aggrieved
person' for the purposes of either Section 47 or Section 57 of the Act.
The law is that a person, " whose interest is affected in some possible
way; it must not be a fanciful suggestion of grievance. A likelihood of
some injury or damage to the applicant by such trademark remaining
on the register may meet the test of locus standi." . He has in this
context, relied upon the judgment of the Supreme Court in Infosys
Technologies Limited Vs. Jupiter Infosys Limited and Anr. 5.
21. Mr. Kadam has submitted that the Petitioner's interest
are clearly affected, and it has in fact suffered a legal injury. He has
submitted that the Petitioner sells goods under the same Le Shark
4 15 RPC 262 at Line 11, Pg. 266-267
5 (2011) 1 SCC 125 at paras 28-29
COMMP-538-22.doc
mark all over the world. It desires to enter the Indian market. In
anticipation of starting business in India, the Petitioner applied for
trademark registration of its LE SHARK mark in India in Class 25 for
clothing, footwear and headgear under Application No. 2904714,
which was refused by the Registrar citing the impugned mark.
22. Mr. Kadam has submitted that the Petitioner's business
interests are affected by the impugned mark remaining on the
Register and it has also suffered injury by virtue of its trademark
Application having been refused due to the citation of the impugned
mark.
23. Mr. Kadam has submitted that a fortiori, the Petitioner is
a 'person aggrieved' for maintaining this Rectification Petition.
24. Mr. Kadam has submitted that the Respondents' second
defence of delay is also frivolous. Neither Sections 47 nor 57 raise
any time bar for filing a Rectification Petition. Furthermore, non-use
of a mark is a continuing cause of action, which cannot be time
barred. He has placed reliance on the judgment of the Delhi High
Court in Fedders Lloyd Corporation Ltd. and Lloyd Sales Corporation
COMMP-538-22.doc
Pvt.Ltd. Vs. Fedders Corporation and the Registrar of Trade Marks6.
25. Mr. Kadam has submitted that it is settled law that delay
is a defense in equity. The principle behind the doctrine is that rights
which may have accrued to a party should not be disturbed unless
there is a reasonable explanation for the delay. He has in this context
relied upon the judgment of the Supreme Court in M/s. Dehri Rohtas
Light Railway Company Limited Vs. District Board, Bhojpur7.
26. Mr. Kadam has submitted that in the present case, no
rights have accrued to the Respondents since their original adoption
is itself dishonest and that apart they have not produced reliable
evidence of any actual use of the marks. Instead, they have relied on
ex-facie fabricated invoices, which disentitles them from seeking any
equities. He has placed reliance upon the judgment of the Delhi High
Court in Hindustan Pencils Vs. India Stationary Products and Anr..8
27. Mr. Kadam has submitted that the Petitioner was wholly
unaware of the Respondents' registration until they applied for
6 2005 ILR 1 Del 478 paras 45-47, (MANU/DE/0501/2005)
7 1992 2 SCC 598 para 13
8 ILR 1989 1 Delhi 115 paras 30, 31, 35, 37 and 38
COMMP-538-22.doc
registration of their impugned mark in India and the impugned mark
was cited in the Examination Report. Therefore, the Rectification
Petition has been promptly filed.
28. Mr. Kadam has submitted that in view of the
Respondents having no bonafide intention to use the impugned mark
nor having proved actual use, the adoption of the mark being
dishonest merits removal under Sections 47(1)(a), 47(1)(b) as well
as under Section 57 of the Act for sufficient cause. For these reasons,
the Petitioner has prayed that this Court allow the Rectification
Petition and expunge the Respondents' registered Trademark No.
466002 in Class 25 from the Register.
29. Mr. Lakshyaved R. Odhekar, the learned Counsel for the
Respondent Nos. 1 and 2 (referred to as "Respondents"), has
submitted that the Petitioner has no presence in India at the time of
filing of the Rectification Petition and even as on date, they do not
have any presence in India, which can be seen based on the
documents filed by the Petitioner. He has submitted that the
Petitioner has not claimed any trans-border reputation or goodwill
having spilled over in the Indian Jurisdiction / markets in India
COMMP-538-22.doc
anywhere in its pleadings. As against this, the trademark of the
Respondents is registered and subsisting, and as on date, the said
trademark is registered for over 37 years.
30. Mr. Odhekar has submitted that the Petitioner's alleged
mark was not used prior to December 2014. The Petitioner claims
that it is a joint venture company between one S.R.G. Apparel Plc
(S.R.G. Apparel) and one Grabal Alok (UK) Limited. He has referred
to the pleadings, in particular paragraph 9(iii) of the Petition,
wherein it is pleaded that in the year 2013, the said Grabal Alok and
S.R.G. Apparel decided to refresh their decades old brand with
update for modern consumers, and therefore, in the year October
2013, the Petitioner company was incorporated. This is an
unequivocal pleading on behalf of the Petitioner that their alleged
mark/ brand was not used up until 2013 by the Petitioner.
31. Mr. Odhekar has submitted that the Petitioner has not
produced any document before this Court to establish that the
Petitioner has been given the authority to file the present proceedings
on behalf of the so called joint owner and a licensee, S.R.G. Apparel,
of the alleged trademark LE SHARK. It is a pleading of the Petitioner
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in Paragraph 9(iv) of the Rectification Petition that S.R.G. Apparel is
both joint owner and a Licensee of the Petitioner's alleged mark Le
Shark. He has submitted that the Petitioner has attached invoices to
establish its alleged use of the trademark Le Shark. However, the said
invoices are that of SRG Apparel, an independent entity. The said
invoices do not mention the trademark under which the products are
sold through the said invoices.
32. Mr. Odhekar has submitted that the Petitioner in
paragraph 9(x) of the Rectification Petition has submitted that they
have been selling their range of products under their alleged
Trademark Le Shark since December 2014. He has submitted that
from a bare reading of paragraph 9(iii) and 9(x) of the Petition, it
can be seen that in the year 2013, the Petitioner decided to use the
alleged trademark for the first time and in December 2014, the
Petitioner started selling their products under the alleged trademark
clearly outside India.
33. Mr. Odhekar has submitted that the Petitioner has in
paragraph 9(xii) of the Rectification Petition referred to the alleged
worldwide wholesale of their product from December 2014 to
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September 2017. He has submitted that the Petitioner has further
made a statement in paragraph 9 (xiv) of the Petition that the Le
Shark products have been sold through www.tkmaxx.com from
January 2015. The paragraph 9 (xv) of the Petition refers to various
E-Commerce websites on which allegedly Petitioner's products are
sold and all of them are after January 2015. He has submitted that
on the basis of the averments made by the Petitioner in the Petition,
it is crystal clear that the Petitioner started using the alleged
trademark in December 2014 and not prior to that outside India and
they have not been using the same prior to December 2014.
34. Mr. Odhekar has submitted that the maintainability of
the Rectification Petition filed by one Mr. Abhijit Chatterjee on behalf
of Applicant is an issue which arises. The Applicant has not placed
anything on record that it has authorized Mr. Abhijit Chatterjee to
file the present proceedings on behalf of joint-owner and Licensee -
S.R.G. Apparel. He has submitted that the Petitioner is clearly not an
entity formed or governed under the Indian Law and is a foreign
entity and therefore, in order to file any litigation in India, as per
Section 83 of CPC, 1908, they need to follow due process of law. He
has submitted that the Petitioner has not placed on record such
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document equivalent to a Board Resolution / Power of Attorney for
such person, who has affirmed the Rectification Petition, being the
authorised signatory of the Petitioner. The person ought to have
affirmed the Petition accordingly.
35. Mr. Odhekar has submitted that the Petitioner has filed
additional Affidavit on 22nd November 2023 to bring on record the
suppressed fact about refusal of their trademark application bearing
No. 2904714. He has submitted that in the said additional Affidavit,
the Petitioner has referred to a Review Application filed before the
learned Registrar of Trademarks. In the Review Application, there
appears to be a Power of Attorney dated 30th November 2016 in
favour of Mr. Abhijeet Chatterje and Mr. Debesh Bose of a Law Firm,
S. Majmudar & Co. The said document however, appears to be for
Focus International Limited and not for Le Shark Apparel Ltd.
36. Mr. Odhekar has submitted that the alleged power of
attorney is part of pleadings in different trademark and not before
the IPAB and/or for this Court. He has submitted that this Court in
Oil And Natural Gas Commission Vs. Offshore Enterprises Inc. 9 has
9 1993 Mh LJ 243
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held that an Advocate is not entitled to act in a professional capacity
as well as constituted attorney of a party in the same matter or cause.
This Court has further in paragraph 15 held that the Prothonotary &
Senior Master of the High Court shall not accept any vakalatnama in
favour of a firm of advocates where one or the other partner of the
same firm also holds a power of attorney of the Plaintiff or the
Defendant or any other suitor before the Court in the same cause.
37. Mr. Odhekar has submitted that as aforementioned the
Petitioner has absolutely no presence in India. He has submitted that
the Petitioner is claiming to have used the alleged mark outside India
since and that too only after December 2014. He has submitted that
in none of the pleadings, the Petitioner has referred to the presence
of their products in India. On the other hand, the Respondents in
India have registered their mark and used it since 1987 and have
attached invoices to that effect. He has referred to the invoices which
have been filed by the Petitioner. These invoices are only in respect
of the United Kingdom and the United Arab Emirates and they are
issued in December 2014 and October 2016 respectively. He has
accordingly, submitted that the Petitioner has miserably failed to
establish use of their alleged mark prior to December 2014 even
COMMP-538-22.doc
outside of India. He has submitted that the Petitioner has filed the
present Rectification Petition only in order to enter the Indian
market, which is established by the pleadings of the Petitioner, which
states that the Respondents' registered trademark acts as hindrance
to launch the Petitioner's business in India.
38. Mr. Odhekar has submitted that the Petitioner's
Application for registration of its Trademark No. 2904714, was
objected under Section 11 of the Act, where the Respondents'
trademark was cited as the conflicting mark. The said Trademark
Application came to be rejected / refused by the learned Registrar by
order dated 7th April 2021. The Petitioner was allowed to place this
fact on record by way of additional pleadings upon an opportunity
given to the Respondents to reply to the same. Under the garb of
urgency and in order to wriggle out of the fact that on 7th April
2021 their Trademark Application was refused and the said fact was
not brought before this Court in the present proceedings, the
Petitioner took the shelter of COVID-2019 and simply attached the
said order to the additional Affidavit dated 22nd November 2023.
39. Mr. Odhekar has submitted that the learned Registrar
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has refused the said Trademark Application of the Petitioner, even
otherwise on merits by giving a detailed reasoning relying on the
Judgment of the Supreme Court in Cadila Healthcare Vs. Cadila
Pharmaceuticals10. He has submitted that the Applicant immediately
filed a review against the said order of the learned Registrar on 7th
May 2021, but failed to bring the said fact before this Court at the
relevant time. He has submitted that the Review Application has been
pending since May 2021 and the Petitioner is taking adjournments
under the garb of pendency of the present proceedings. He has
submitted that the Petitioner is clearly not interested in properly
prosecuting their own Application and they are doing so only to
harass the Respondents.
40. Mr. Odhekar has submitted that no case has been made
out in terms of Sections 47 and 57 of the Act. He has submitted that
the Petitioner has failed to establish anything to showcase or even
make an averment with respect to alleged "bad faith" as
contemplated under the relevant section. He has submitted that the
Petitioner has referred to the Respondents' website to contend that
the Respondents misspelled Aldgate as Algate. This has been denied
10 AIR 2001 SC 1952
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by the Respondents in its counterstatement and the same is entirely
based on conjecture and surmise. The reference is made by the
Petitioner to the Respondents' website purportedly to establish a
connection between themselves and the Respondents by referring to
Aldgate Warehouse Limited as an affiliate of the Petitioner and that
Aldgate was sourcing products from the Respondents.
41. Mr. Odhekar has submitted that the Petitioner has failed
to produce the evidence to show that the Respondents were in
business with the alleged Aldgate prior to applying for registration of
their mark i.e. prior to 31st January 1987. The documents in order to
establish Petitioner's association with the said Aldgate Warehouse
Ltd. only shows that the some directors of the said two entities were
common.
42. Mr. Odhekar has submitted that the registered trademark
Le Shark has been used by the Respondents since the year 1987. The
Respondents' mark is valid and subsisting, till date. The Respondents
have not received any objection, challenge or notice with respect to
their trademark. The Respondents being registered proprietor are
continuously using the said trademark Le Shark and have attached
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specimen invoices at Exhibit D to its counterstatement, where it is
evident that its earliest invoice attached is of 3rd March 1990 and the
latest invoice attached is of 18th August 2015. Although the
Petitioner had stated that they wish to inspect the invoices and
documents of the Respondents, they never asked for the said
inspection.
43. Mr. Odhekar has submitted that the Petitioner has in
paragraph 9 (xxi) of the Rectification Petition stated that the
Respondents were aware of the use and reputation of the Petitioner
and therefore, it cannot be a coincidence that the Respondents
conceived and adopted an identical or deceptive identical trademark.
In any event, it is clear that the Petitioner started using their alleged
trademark in some other countries and that too after December,
2014. He has submitted that even as on date, the Petitioner has
absolutely no presence in India.
44. Mr. Odhekar has submitted that the Petitioner has failed
to prove non-use in terms of Section 47 of the Act. He has submitted
that the Petitioner has merely made cosmetic averments in some of
the paragraphs of the Rectification Petition. He has submitted apart
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from pleading merely non-use or non-intention of bona fide use, the
Petitioner has not made any factual statements / pleadings nor has
the Petitioner lead any evidence to establish their case.
45. Mr. Odhekar has submitted that the intention behind
Section 47 of the Act is to prevent hoarding of trademarks. Removal
of trademark duly registered has serious implications and therefore,
the standard of proof in such matters are much higher than that of an
interim application seeking relief of a temporary injunction in
matters of passing off or infringement of the trademarks. In cases of
rectification of a registered trademark, the Petitioner must discharge
its burden of proof by leading unimpeachable evidence. He has
placed reliance upon the judgment of this Court in Eagle Potteries
Private Ltd. Vs. Eagle Flask Industries Private Ltd. 11. This Court has
held that the burden of proving non-user will always be on the party
making the averments in the Petition. No other evidence either by
way of Affidavits from dealers and traders or oral evidence has been
lead to show that there has been non-use by the Respondent therein
or that there are no goods of the same description. The Court held
that merely making an averment is not sufficient.
11 1992 SCC OnLine Bom 490 paras 44 & 45
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46. Mr. Odhekar has submitted that since non-user is a
negative fact, it is required to be proved by Affidavit of Evidence. It is
only upon the non-user being substantially proved, then only the
onus can shift on the Respondents. He has relied upon the judgment
of IPAB in Shell Transource Limited Vs. Shell International Petroleum
Company Limited12 in this context.
47. Mr. Odhekar has submitted that the Petitioner has not
pleaded trans-border reputation or the registration of the
Respondents' mark is an act of Trademark Squatting. He has
submitted that the same cannot be argued at the stage of final
hearing of the Petition. He has placed reliance upon the judgment of
the Supreme Court in Bachhaj Nahar Vs. Nilima Mandal & Anr. 13,
which has held that if the question did not arise from the pleadings
and/or was not the subject matter of the issue, it cannot be decided
by the Court. The Court should confine its decision to the questions
raised in pleadings.
48. Mr. Odhekar has relied upon the judgments of the
12 2012 SCC Online IPAB 29 paras 13 & 14
13 (2008) 17 SCC 491
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Supreme Court and other High Courts, which have considered the
issue of Trans-border Reputation. These are as under :-
a. Hypnos Limited Vs. Hosur Coir Foam Pvt. Ltd. &
Ors. :: 2015 SSC online IPAB 213 :: paragraphs 88
to 107
b. Toyota Jidosha Kabushiki Kaisha Vs. Prius Auto
Industries Limited :: (2018) 2 SCC 1 :: Paragraphs
38, 39 & 40
c. Toyota Jidosha Kabushiki Kaisha Vs. Tech Square
Engineering Pvt. Ltd. :: 2023 SSC onLine Del 583 ::
Paragraphs 13 to 27
d. Daiwa Pharmaceuticals Co. Ltd. Vs. Daiwa
Pharmaceuticals Pvt Ltd. :: 2024 SCC OnLine Bom
1078 :: Paragraph 83
e. Lupin Limited Vs. Eris Lifesciences Pvt. Ltd. :: 2015
SCC OnLine Bom 6807 :: Paragraph 19
49. Mr. Odhekar has submitted that the Supreme Court in
Milmet Oftho Industries & Ors. Vs. Allergan Inc. 14 reproduced in
Paragraph 99 of the Hypnos Limited Vs. Hosur Coir Foam Pvt. Ltd.
(supra) has held that the multinational corporations, who have no
14 (2004) 12 SCC 624
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intentions of coming to India or introducing their product in India,
should not be allowed to throttle an Indian Company by not
permitting it to sell their product in India, if the Indian company has
genuinely adopted a mark.
50. Mr. Odhekar has submitted that the Delhi High Court
has addressed the issue of trademarks squatting while dealing with a
case of Rectification in BPI Sports LLC Vs. Sourabh Gulati and Anr.15.
It has been held that in order to bring a case of trademark squatting,
the prior knowledge and awareness of the Applicant's trademarks
and its reputation is taken into consideration.
51. Mr. Odhekar has submitted that in the present case, the
Respondents' trademark was applied for on 31st January 1987 and
the pleadings of the Petitioner nowhere suggests use of the
Petitioner's alleged trademark prior to 2014-15. The Petitioner's
contention that the Respondents had prior knowledge of the
Petitioner's trademark is not supported by any documentary proof for
establishing the same.
15 2023 SCC Online Delhi 2424 paras 23 to 25 and paras 45/52 onwards
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52. Mr. Odhekar has dealt with the contention of the
Petitioner that the Respondents' trademark was obtained by fraud.
He has submitted that the Petitioner has nowhere pleaded that the
registration of the Respondents' trademarks was by fraud and this is
a new argument of the Petitioner in oral arguments and written
submissions. He has submitted that this allegation needs to be
factually substantiated, if the Petitioner wishes to rely upon the same.
53. Mr. Odhekar has submitted that if the Petitioner
attempts to make out a case that the Respondents have obtained their
registration malafidely, then the Petitioner must specifically prove a
connection between the Petitioner and the Respondents prior to 1987
to establish the fact that the Respondents saw the Petitioner's
trademark and then copied the same. The Petitioner has failed to
establish the same and hence the Petitioner cannot make such claim
without any pleadings.
54. Mr. Odhekar has submitted that the Respondents in a
Rectification Petition need not give any reason for adoption of their
trademark. However, in the present case, the Respondents have
stated that their predecessor has coined the term "Le Shark" in the
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1980s.
55. Mr. Odhekar has submitted that it has been held in Lupin
Limited Vs. Eris Lifesciences Pvt. Ltd. (supra) at paragraph 20 that
"when the mark is registered and the entry is made in the Register,
the Plaintiff discharges the burden that the mark is a distinctive mark
and satisfies the criteria of 'trademark' within the definition of the
trademark and the requirements of Sections 9 and 11 of the Act. ". He
has submitted that this judgment is apposite in the present case, as
the Respondents have registered their mark and thereby has
discharged the burden of proving that the mark is a distinctive mark.
56. Mr. Odhekar has submitted that the Petitioner for
countering the Respondents' contention on maintainability of the
Rectification Petition has not relied on any material to establish that
it had authorised the filing of the present Rectification Petition. The
Petitioner has submitted that absence of the Rectification Application
signed by the Constituted Attorney, is a merely technicality and a
curable defect by relying upon decisions of the Supreme Court and
this Court. He has submitted that this fails to meet the contention of
the Respondents that the person given the Power of Attorney is an
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employee of a law firm, who has filed the Petition and it has been
held in Oil And Natural Gas Commission (supra) that an Advocate is
not entitled to act in a professional capacity as well as Constituted
Attorney of a party in the same matter or cause. He has submitted
that the Applicant to meet this contention, for the first time, has
orally stated that the said Mr. Abhijit Chatterjee is merely working for
gain in the said law firm and is not an advocate.
57. Mr. Odhekar has submitted that the fault of the
said Power of Attorney is that it has been notarized for Focus
International Limited and not for Le Shark Apparel Limited. This
defect is not a curable defect. He has submitted that the Petitioner's
proceedings are vitiated for want of specific and proper power of
attorney.
58. Mr. Odhekar has dealt with the judgments relied
upon by the Petitioner viz. Milmet Oftho Industries (supra) and
Fedders Lloyd Corporation Ltd. (supra). In the first of the said cases,
the Plaintiff had obtained an injunction against the Defendants,
which was vacated by the Division Bench of the High Court and the
same was not reversed by the Supreme Court. He has submitted that
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this case in fact supports the Respondents. The Petitioner has relied
upon the second case to counter the argument of delay in filling the
present Rectification Application. He has submitted that the said case
at hand deals with the argument of the Respondents therein, who
admits non-use and then states that the Application for Rectification
has been filed after three years of non-use. This argument was
rejected by the Delhi High Court.
59. Mr. Odhekar has also dealt with the judgment relied
upon by the Petitioner viz. La Societe Anonyme Des Parfums Le
Galion Vs. Jean Patou, Inc.16 in support of their contention that
minimal sales by registered proprietor are insufficient to establish the
trade mark rights. He has submitted that in that case, it was held that
individuals who obtain a trademark registration through false or
fraudulent means are liable for damages sustained by anyone injured
by that registration. In the present case, the Petitioner has not at all
specifically pleaded any facts to substantiate false of fraudulent
registration. Hence, this judgment is not applicable to the present
case.
16 1974 U.S. APP. Lexis 9252
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60. Mr. Odhekar has submitted that there is no merit in the
Rectification Petition and accordingly, the Rectification Petition of
the Petitioner be dismissed with costs.
61. Having considered the submissions, the issue that arises
in the present Rectification Petition is whether the impugned
trademark of the Respondents, ought to remain in the register under
Sections 47 and 57 of the Act. The issues that arise are as under:-
i) Whether the Respondents had a bonafide intention to
use the impugned mark for the purposes of Section 47
(1) (a) of the Act?
ii) Whether it has bonafide used the impugned registered
trademark for the purposes of either Section 47 (1) (a)
or (b) of the Act?
iii) Whether the impugned trademark is liable to be
expunged for sufficient cause under Section 57 of the
Act for having been conceived in dishonest/fraudulent
circumstances?
62. Under Section 47(1)(a) of the Act, the Court is required
to assess whether there was a ' bonafide' intention to use and
'bonafide' use by the proprietor of the impugned mark within three
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months of the date of the Rectification Application. Further, under
Section 47(1)(b) of the Act, the Court is required to assess whether
there has been 'bonafide' use for a continuous period of five years
upto three months of the date of the Rectification Petition.
63. Having perused the record, the absence of ' bonafide"
intention to use the impugned trademark is writ large in this case.
The impugned trademark is a virtual copy and/or deceptively similar
to the trademark registrations (including the Petitioner's trademark
registration) obtained prior in time in Europe in 1985. The
Respondents have not seriously contested that the use of their
trademark was prior to the use of the Petitioner's predecessor's
trademark. The impugned mark comprises of the words 'Le Shark'
and a distinctive shark pictorial logo. The words 'Le Shark' by
themselves are fanciful and arbitrary in relation to clothes. The
fraudulent adoption of the impugned trademark of the Respondents
is evident in view of an identical shark graphic logo to that of the
Petitioner's predecessor's marks in 1985 Europe registrations. Thus, it
is prima facie established that the impugned trademark is the fruit of
fraud and is borne out of dishonest intentions. It is well settled that
when a mark is borne out of fraud, it is difficult to purify its use
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subsequently.
64. I further find from the invoices, which have been relied
upon by the Respondents that these invoices prima facie appear to be
fabricated as they have been made out to one Isha Craft Private
Limited, a company that was incorporated much later in time. The
Petitioner had pleaded the fabrication of the invoices in its Rejoinder
filed in 2019. However, the Respondents failed to file pleadings
countering this position and/or lead evidence to prove the
authenticity of the documents through witnesses. The fabrication of
these invoices is evident, as these invoices are purportedly issued on
13th February 2006 and 19th February 2006, and made out to "Isha
Crafts Private Limited", whereas Isha Crafts Private Limited was
incorporated only in the year 2009.
65. Having considered the invoices relied upon by the
Respondents, which have been made out in the name of Isha Crafts
Private Limited to be fabricated, results in a rejection of the other
invoices submitted by the Respondents. Prima facie it appears that
the Respondents are relying upon these invoices with an attempt to
evade the legal consequences that accrue, when a litigant relies on
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fabricated materials.
66. It has been held by this Court in Jayant Industries Vs.
Indian Tobacco Company (supra) and S.P. Chengalvaraya Naidu
(Dead) By LRs Vs. Jagannath (Dead) By LRs & Ors. 17 as well as in
Indian Council For Enviro Legal Action Vs. Union of India 18, that
submission of fabricated documents by a party attracts serious
consequences in law and the Court is summarily obligated to throw
out that party and deny the relief.
67. From the aforementioned judgments, it is well settled
that when the Respondents have submitted fabricated documents,
the Court is entitled to be skeptical and disbelieving of their pleaded
case and the materials relied on in support. An adverse inference of
non-genuineness from false proof having been tendered is required to
be drawn.
68. The contention of the Respondents that the impugned
trademark was used on the Respondents' webpage, which is sufficient
17 (1994) 1 SCC 1
18 (2011) 8 SCC 161
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to sustain the validity of its registration is misconceived. The
legislature being conscious that a trademark registration affords a
statutory monopoly under Sections 28 and 29 of the Act, under
Section 47 has granted a remedy to rectify a mark for want of
'bonafide' use. If use is shown to be not 'bonafide', it is vulnerable to
rectification under Section 47.
69. It has been held by the U.S. Second Circuit Court in La
Societe Anonyme Des Parfums Le Galion (supra) that de minimis
and/or sporadic use does not necessarily constitute 'bonafide use'. It
has been held by the U.S. Second Circuit Court that to prove bona
fide usage, the proponent of the trademark must demonstrate that
his use of the mark has been deliberate and continuous, not sporadic,
casual or transitory. It is evident that Respondents' use of the
impugned trademark on the webpage (and even invoices) is sporadic
and casual use of the mark. Further, it is not 'bonafide' for the
purpose of sustaining the statutory monopoly afforded to the mark
under the auspices of the Act.
70. I am of the view that the Respondents' reliance on the
judgments of this Court in Eagle Potteries Private Ltd. (supra) and
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Shell Transource Limited (supra) is misconceived. There is no dispute
with the proposition enunciated in those judgments that the burden
of proving non-use first lies on the Petitioner seeking rectification.
These judgments will not apply in the present case, as the
Respondents though filing pleadings affirming that it has used the
mark, relies on fabricated documents to sustain their case. Having
prima facie found the material relied upon by the Respondents to be
ex facie fabricated, the Respondents cannot escape the consequences
by arguing that the burden continues to remain on the Petitioner to
lead evidence of non-use of the impugned registered mark.
71. Further, the Supreme Court in Milmet Oftho Industries
(supra), has held that although multinational corporations having no
intentions of coming to India or introducing their product in India,
should not be allowed to throttle an Indian Company by not
permitting it to sell their product in India, this is provided that the
the Indian company has genuinely adopted the mark and developed
the product and is first in the market. The genuine adoption of a
trademark is a basic underpinning of trademark law since it seeks to
protect the honest trader's efforts to stand by his wares and warrant
their quality. When this is absent as in the present case, there lies
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sufficient cause for expunging a trademark.
72. The Respondents assailing the authority of the
Constituted Attorney to file the present rectification proceeding on
the premise that it was originally filed through the law firm S.
Majumdar & Co, and that the Constituted Attorney was an advocate
of the firm, which is in the teeth of the judgment of this Court in Oil
And Natural Gas Commission (supra), is misconceived. The said
judgment is inapplicable in the present case. This objection has not
been pleaded and was only urged across the bar. Hence, no
countenance of the same can be taken. In any event, the allegation
that no Power of Attorney was filed, is incorrect. The Rectification
Petition was originally filed in the IPAB and the procedure followed
was of filing the Petition and the Power of Attorney under a covering
letter enclosing the Petition. The Power of Attorney did not form part
of the Petition itself. This entire file has been thereafter, transferred
to this Court and the said Power of Attorney forms part of the record
along with the said covering letter. The reference to 'Focus
International' is not in the Power of Attorney, but has been
erroneously mentioned in the separate notarial certification given by
the UK notary. Thus, this would not have any bearing and/or impact
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on the Power of Attorney itself which is duly affirmed by the Director
of the Petitioner. Further, from the record, the Constituted Attorney
is not even an Advocate. It appears that the Petitioner has authorised
Advocate Ms. Suvarna Joshi to prosecute this Petition before this
Court. She is an independent practitioner. Thus, the role of
Constituted Attorney and Advocate on record are consequently being
performed by two separate distinct persons. In that view of the
matter, the judgment relied upon by the Respondents, namely Oil
And Natural Gas Commission (supra) has no application, as there is
no conflict of interest.
73. I find much merit in the submission of the Petitioner that
defects in power of attorney and/or authority to file pleadings are
wholly curable and do not go to the root of the matter and/or render
the same a nullity. This cannot be a ground to dismiss a just case
and/or cannot be used to defeat a substantive right. This Court can at
any time, direct the Petitioner to cure the alleged defects. This has
been held in Western India Theatres Ltd. Vs. Ishwarbhai Somabhai
Patel19, United Bank of India Vs. Naresh Kumar 20 and The Bank of
19 1958 SCC Online Bom 99 para 20
20 (1996)6 SCC 660 Paras 9-11
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Nova Scotia Vs. RPG Transmission Limited 21. Thus, I find the
objection taken by the Respondents on the maintainability of the
Rectification Petition on this ground to be without substance and
frivolous.
74. The contention of the Respondents that their trademark
was registered under the Trade and Merchandise Marks Act, 1958
and that its validity was conclusive in terms of Section 32 of that Act
is beyond the pleadings and is in any event, misconceived. The
impugned trademark had been admittedly renewed under the
present Act. The rights enjoyed by the Respondents and conferred by
registration are now under Section 28(1) of the Act, which is
qualified with the words, 'subject to the provisions of this Act' . A
fortiori, the registration is subject to the provisions of the Act which
include Sections 47 and 57 of the Act. Thus, the registration of the
trademark of the Respondents is consequently vulnerable to
challenge under Section 47 as well as 57 of the Act, particularly since
there was no bonafide use and the impugned trademark has been
obtained by fraud. This contention of the Respondents is therefore,
without merit.
21 (2003) 66 DRJ 24 Para 4
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75. The argument of the Respondents that the Petitioner had
only proved use of its trademark from 2014 onwards and that too
outside India and that the Petitioner has no trans-border reputation
would have no relevance to the present enquiry. This, in view of the
present proceedings being for rectification of the impugned
trademark and not in respect of trademark infringement and/or
passing off where such issues are relevant. The only enquiry before
this Court would be whether the impugned registered trademark is
liable to be rectified under Sections 47(1)(a) or 47(1)(b) of the Act
and/or for 'sufficient cause' under Section 57 of the Act.
76. Having arrived at a prima facie finding that the
impugned registered trademark is liable to be rectified under Section
47 for having been borne out of the fraudulent adoption and not
having been bonafidely used, the use by the Petitioner of its
trademark from 2014 onwards and that too outside India is of no
consequence. Thus, the judgments relied upon by the Respondents in
support of their contention have no application to the facts of the
present case.
77. The further reliance of the Respondents on the
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Registrar's rejection of the Petitioner's Trademark Application No.
2904714 by Order dated 7th April 2021 and the factum of the
Review Application pending against the same is misplaced as these
facts are wholly irrelevant and beyond the aforementioned enquiry in
these proceedings.
78. The locus of the Petitioner for maintaining this Petition is
established, as there is a likelihood of some injury or damage to the
Petitioner by the impugned trademark remaining on the register and
the Petitioner's interest is affected in some possible way. The
judgment of the Supreme Court in Infosys Technologies Limited
(supra) is apposite. In the present case, the Petition for Rectification
was filed on the basis of the Petitioner being desirous of launching
goods in India under its Le Shark label mark which were otherwise
available worldwide. Thus, the Petitioner has a commercial interest
in having the impugned registered trademark rectified and/or
expunged.
79. The reliance placed by the Petitioner on the order of the
Registrar dated 7th April 2021 rejecting the Petitioner's Trademark
Application on the basis of conflict with the Respondents' impugned
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trademark had only been cited to further augment the Petitioner's
locus standi to maintain the present proceeding. This Order is not
under challenge in these proceedings. Further, the contention of the
Respondents on disclosure of the pendency of the Review Application
is misconceived. This fact is only disclosed by the Petitioner for the
purpose of completeness of record. The Petitioner's mark can only
proceed for registration pursuant to the impugned mark being
expunged.
80. The Respondents' contention insofar as the present
Rectification Petition being vexed by delay is of no merit. It is settled
law that delay is a defense in equity. The principle behind the
doctrine is that rights which may have accrued to a party should not
be disturbed unless there is a reasonable explanation for the delay.
This has been held in M/s. Dehri Rohtas Light Railway Company
Limited (supra). Given the aforesaid prima facie finding that the
Respondents' original adoption of the impugned trademark is itself
dishonest and they have not been able to produce reliable evidence
of any actual use of the impugned trademarks as well as having
relied on ex-facie fabricated invoices, disentitles the Respondents
from claiming any equities. Thus, any delay in filing of the
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Rectification Petition would be immaterial.
81. In any event, the Petitioner was wholly unaware of the
Respondents' registration until they applied for registration of their
mark in India and when the impugned mark was cited in the
Examination Report. Thus, the Rectification Petition has been
promptly filed thereafter.
82. Section 57 of the Act confers discretion upon the Court
to maintain purity of the Register. Having prima facie held that there
is fraudulent adoption of the impugned trademark by the
Respondents, the impugned trademark merits removal from the
Register for sufficient cause.
83. Accordingly, the Commercial Miscellaneous Petition is
made absolute. The entry relating to Trademark No. 466002 in Class
25 shall be removed/expunged from the Register of Trade Marks.
84. The Commercial Miscellaneous Petition is disposed of in
the above terms. There shall be no order as to costs.
[R.I. CHAGLA J.]
