[Cites 12, Cited by 0]
Bombay High Court
Rajat Kumar vs Shivankur Gupta And Anr. on 23 March, 2026
Digitally
signed by
2026:BHC-OS:7051
MEERA 5-COMMP-479-22.DOC
MEERA MAHESH
MAHESH JADHAV
JADHAV Date:
2026.03.24
18:28:38
+0530 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
COMMERCIAL MISCELLANEOUS PETITION NO. 479 OF 2022
Rajat Kumar ...Petitioner
Versus
Shivankar Gupta & Anr. ...Respondents
_____
Mr. Yakshay Chheda i/b SSB Legal & Advisory for Petitioners.
None for the Respondents.
_____
CORAM : ARIF S. DOCTOR, J.
RESERVED ON : 10th MARCH 2026
PRONOUNCED ON : 23rd MARCH, 2026
JUDGMENT
1. The captioned Petition has been filed under the provisions of Section
57 of Trade Marks Act, 1999 ("Trade Marks Act"), seeking
cancellation of the registration obtained by Respondent No. 1 in respect
of the mark "TRACTORJUNCTION" ("impugned mark") in class
35. Respondent No. 2 is the Registrar of Trade Marks who passed the
impugned order.
2. The Respondents, though served, have not appeared, as noted in the
Order dated 3rd March 2025. The averments in the Petition therefore
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remain uncontroverted.
Submissions on behalf of the Petitioner:
3. Mr. Chheda, Learned Counsel appearing on behalf of the Petitioner has
assailed the impugned registration essentially on two grounds: (I) that
the impugned mark has been registered without sufficient cause and is
an entry wrongly remaining on the register under Section 57(2) of the
Trade Marks Act and (II) that Respondent No. 1 had applied for
registration of the impugned mark in bad faith, and the same is barred
under Section 11(10) and Section 18 of the Trade Marks Act.
4. Mr. Chheda, in support of (I) and (II) above, made the following
submissions.
I. The impugned mark has been registered without sufficient
cause and is an entry wrongly remaining on the Register.
5. Mr. Chheda at the outset submitted that the registration of the
impugned mark was barred under the provisions of Section 11(3) of
the Trade Marks Act since Petitioner No. 1 was the prior adopter and
user of the impugned mark and logo " ". He submitted that the
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impugned mark was adopted by Petitioner No. 1 in the year 2014 and
has been used by Petitioner No. 1 continuously since at least 2016 in
respect of goods and services covered under Class 35.
6. Mr. Chheda then submitted that Petitioner No. 1 had significant rights,
both statutory and common law, in the impugned mark and that
Petitioner No. 1's statutory rights in the impugned mark were evident
from the following list of registrations and pending applications, viz.
Application Trade
Class Date of Application Status
No. Mark
4473747 9 16.03.2020 Registered
4473749 Device 12 16.03.2020 Accepted and Advertised
4473750 Mark 42 16.03.2020 Registered
4355544 35 22.11.2019 Objected
7. Mr. Chheda then, in support of Petitioner No. 1's common law rights
in the impugned mark, invited my attention to the following viz.
Sr. No. Document Date of document Annexure
1. Printout of Petitioner No. 1's Facebook - Annexure F
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Page (@pg. 68 to
70)
Email exchange with website designer
for creation of the website of Petitioner January and March Annexure G
2.
No. 1, www.tractorjunction.com and 2016 (@pg. 71)
logo
Annexure
Illustrative invoices, quotations, and
3. 2016 and 2017 (@pg. 72 to
80)
Annexure I
Illustrative agreements between
4. 2016 and 2017 (@pg. 81 to
Petitioner No. 1 and customers
87)
Annexure J
Illustrative invoices showing Petitioner
5. 2016 (@pg. 88 to
No. 1's sales promotion expenses
92)
Screenshot of Petitioner's interview Interview dated 11 Annexure K
6.
with AI TV April 2017 (@pg. 93)
Web analytics data demonstrating high Annexure L
7. traffic the website of the Petitioner No. 2016 to 2020 (@pg. 94 and
1 95)
shows use of the
Printout from the YouTube page of Annexure M
8. subject trademark in
Petitioner No. 1 (@pg. 96)
early 2016
Annexure N
9. Copy of PAN card of Petitioner No. 1 2016
(@pg. 97)
Annexure B:
Redacted copy of the partnership deed
10. 25th May, 2016 (@pg. 41 to
of Petitioner No. 1 dated 25 May, 2016
47)
Registration certificate issued by the Annexure
11. 8th July 2017
Department for Promotion of Industry (@pg. 47)
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and Internal Trade in favour of
Petitioner No. 1 firm
Internet extract of the Whois record of
Annexure E
the website of Petitioner No. 1 along
12. - (Colly.)(@pg.
with an illustrative screenshot of the
49 to 67)
website dating back to April 2016
He submitted that all of the above showed the prior use by Petitioner
No. 1 of the mark "TRACTORJUNCTION", thus establishing
Petitioner No. 1's common law rights in the said mark. He then pointed
out that Petitioner No. 1 had, since 30th March 2022, assigned all the
aforesaid trade marks and pending applications in favour of Petitioner
No. 2 vide a Deed of Assignment.
8. Mr. Chheda then submitted that Respondent No. 1 had filed an
application for registration of the impugned mark in October 2018 with
a user claim of 10th September 2018, as stated by Respondent No. 1 in
Form TM-A. He then submitted that the said Form specifically sets
out that "...(d) The statement as to use of the mark once made shall be
final." He therefore submitted that the Respondent No. 1 was bound by
the user date of 10th September 2018 as stated in the said Form.
9. Mr. Chheda then submitted that, in any event, the user claim made in
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the impugned registration was false and fabricated for the following
reasons, viz.
i. The investigation report dated 2nd March 2021, prepared by one Mr.
Sameer Fakki, revealed that Respondent No. 1 had never used the
impugned mark.
ii. In paragraph 9 of the Reply to the rectification filed by Respondent
No. 1 before the Intellectual Property Appellate Board ("IPAB"),
Respondent No. 1 had admitted as follows, viz.
"... The only error which Respondent No. 1 admits and accepts
is that erroneously the date of first usage is being written as
05.10.2018, which was mentioned by the attorney i.e.
'Vakilsearch' an online service provider for trademark
registration hired by the Respondent No. 1 for registration of
Trademark. The factual error happened on account of
misinterpretation of the receipt issued by Godaddy for
registration of domain name TRACTOR JUNCTION.co.
Whereas, the said trademark is in usage since the inception of
Shreeji Motors, a "Mahindra & Mahindra" tractor agency
since 2011, located in Gwalior and Gohad or at least from the
date when the evidence of usage is available which is annexed
with this reply."
iii. Respondent No. 1 had not filed any document in support of the
use of the impugned mark since 2011.
iv. The investigation report in paragraphs 4 to 6 also clearly stated that
Respondent No. 1 did not have proof of using the impugned mark.
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II. Respondent No. 1 applied for registration of the impugned
mark in bad faith, and the registration was thus barred under
Section 11(10)1 and Section 18 of the Trade Marks Act:
10. Mr. Chheda submitted that, as was evident from the above,
Respondent No. 1 filed and obtained the impugned registration in bad
faith and only in an attempt to usurp and defeat the rights of the
Petitioner in respect of the impugned mark.
11. He reiterated that Respondent No. 1 had filed a false affidavit of user
before the Trade Marks Registry and had obtained the impugned
registration by playing fraud upon the Registry. He thus submitted that
the registration of the impugned mark had been granted in violation of
the provisions of Section 11(10) and Section 18 of the Trade Marks
Act.
12. Mr. Chheda then placed reliance upon the decision of the Hon'ble
Supreme Court of India in the case of S. Syed Mohideen v. P.
1 11 (10) While considering an application for registration of a trade mark and opposition filed in respect
thereof, the Registrar shall--
(i) protect a well-known trade mark against the identical or similar trade marks;
(ii) take into consideration the bad faith involved either of the applicant or the opponent affecting the right
relating to the trade mark.
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Sulochana Bai2 to point out that the rights of a prior user would remain
unaffected by subsequent registration. He also placed reliance upon the
decision of the Delhi High Court in the case of Marie Stopes
International v. Parivar Seva Sanstha and Another3 to point out that
the Delhi High Court had rectified a trade mark registration under
Section 57 of the Trade Marks Act, where it was found that the
registration was granted in violation of the provisions of Sections
11(3)(a) and 11(10) of the said Act.
13. Mr. Chheda also pointed out that the Delhi High Court had, in the case
of BPI Sports LLC v. Saurabh Gulati and Anr. 4, inter alia, held that
dishonest adoption of a mark with prior knowledge of another similar
mark amounts to bad faith under Section 11(10)(ii) of the Trade Marks
Act. He thus submitted that the present Petition deserved to be allowed
on these grounds, i.e., (I) and (II).
14. Having heard learned counsel for the Petitioner and having considered
2 (2016) 2 SCC 683.
3 2023 SCC OnLine Del 5845.
4 2023 SCC OnLine Del 2424.
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the material upon which reliance has been placed as also the case laws,
I find that the Petition deserves to be allowed. I say so for the following
reasons:
A. The Petition proceeds entirely on the basis that Respondent No.
1 has acted in bad faith in obtaining the impugned registration
and sets out the necessary details and averments in that regard.
Respondent No. 1, though served, has chosen not to appear to
defend the Petition, nor has Respondent No. 1 denied the
allegations including those of bad faith contained in the Petition.
Thus, the averments in the Petition remain uncontroverted, and
in my view, this silence on the part of Respondent No. 1 itself
speaks volumes.
B. Additionally, Respondent No. 1 has claimed user of the
impugned mark since 10th September 2018, whereas, the
Petitioner has placed on record, material to support the
Petitioner's claim of prior use of the impugned mark since at
least 2016, in respect of goods and services covered under Class
35 i.e., the same class in which Respondent No. 1 has claimed
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user of the impugned mark since the year 2018. Again, there is
no denial of this. Petitioner No. 1 has therefore established prior
user of the impugned mark and thus would be entitled to the
benefit conferred upon a prior user as held by the Hon'ble
Supreme Court in the case of S. Syed Mohideen v. P.
Sulochana Bai.
C. Though Respondent No. 1 has in the reply filed to the
rectification proceedings (before IPAB) asserted user since
2011, such a claim is not only contrary to the user claim set out
in the Form TM-A but also is entirely unsupported by any
material. Furthermore, and crucially, the user claim since 2011
is premised on the fact that such usage was by one Shreeji
Motors and Mahindra & Mahindra tractor agency since 2011,
located in Gwalior and Gohad. However, there is nothing to
support this claim, and even assuming such claim was true, there
is nothing to support or show how Respondent No. 1 would be
entitled to the benefit of such user claim since Respondent No.
1 has not produced any assignment from Shreeji Motors in
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favour of Respondent No. 1.
D. Thus, the Petitioner having established prior use, it is to my mind
clear that the impugned registration was obtained in bad faith
and only to attempt to usurp the rights of the Petitioner.
Respondent No. 1 has clearly filed a false affidavit before the
Trade Marks Registry and obtained registration fraudulently.
The impugned registration is therefore in violation of Section
11(10) and Section 18 of the Trade Marks Act. The Petitioner's
reliance upon the decisions of the Delhi High Court in the case
of Marie Stopes International v. Parivar Seva Sanstha and
Another and BPI Sports LLC v. Saurabh Gulati and Anr., in
the facts of the present case is entirely apposite.
15. Hence, for the aforesaid reasons set out in (A) to (D) above, the
Petition is allowed in terms of prayer clause (a).
[ARIF S. DOCTOR, J.]
Meera Jadhav
