Plaza Trading Co. vs R.K. Cables
1986 Latest Caselaw 221 Del

JUDGMENT

A.B. Saharya, J.

(1) The only question arising in this appeal is whether an application for rectification of the register of a trade mark is maintainable without a certified copy of the entry to be rectified accompanying the application.

(2) The appellant applied for rectification of the register in respect of trade mark No. 323-032 with respect to electrical goods. Certified copy of the relevant entry in the register was not filed with the application. The learned single Judge held : "IN view of the fact that neither the original trade mark nor its certified copy is on record, the petition cannot be maintained. No rectification of the trade mark can be filed unless they are accompanied by the trade mark in original or a certified copy."

(3) Section 46 of the Trade and Merchandise Marks Act, 1958 (the "Act") provides that a registered trade mark may be taken off the register in respect of any of. the goods in respect of which it is on application made in the prescribed manner to a High Court or to the Registrar by any person aggrieved on the grounds stated in that section. Section 56 of the Act enables any person aggrieved, to make an application in the prescribed manner to a High Court or to the Registrar for cancelling or varying the registration of a trade mark on the ground of any contravention or failure to observe a condition entered on the register in relation thereto. Section 108(1) of the Act requires an application for rectification of the register made to a High Court u/s 46 or Section 56 shall be in such form, and shall contain such particulars as may be prescribed, "Prescribed" has been defined in section 2(n) to mean, in relation to proceedings before a High Court, prescribed by rules made by the High Court. In exercise of powers conferred by Section 110 of the Act, the High Court has made Rules (hereinafter referred to as the "Rules").

(4) There is no provision in the Act nor in the Rules requiring the original entry or certified copy of the entry in the register to be rectified to be filed along with the application for rectification of the register.

(5) Provisions of Code of Civil Procedure, 1908 apply to application to a High Court u/s 108 of the Act. Sub-rule (1) of Rule 14 of Order Vii of the Code of Civil Procedure requyes, wearer a plaintiff sues upon a document in his possession or power, he shall produce. it in Court when the plaint is presented. and shall at the same time deliver the document or a copy thereof to be filed with the plaint. The consequence of not producing such a document, as indicated by Rule 18 of Order Vii of the Code of Civil Procedure, is that the document which is not produced, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.

(6) Whether a case is made out for rectification of the register or not will depend on proof of facts at the application on its merits. Certified copy of the relevant entry of the register may be relevant as evidence of contents of the entry in case of dispute on it between the parties on merits of the case. But, want of certified copy of the relevant entry cannot be a bar, at the threshold, to maintainability of an application for rectification of the register.

(7) It may be relevant to point out that the High Court itself is not to rectify the register. Section 56 of the Act clearly provides that the Registrar shall rectify the register upon receipt of notice of rectification from the High Court.

(8) It is therefore, unnecessary for the applicant to produce the original register or a certified copy of the register for invoking jurisdiction of the High Court u/s 46 and 56 of the Act for rectification of the register of trade marks. Case remanded