Suresh Kumar Jain vs Union Of India & Anr
2012 Latest Caselaw 13 Del

R~8
*   IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                               Date of Decision: 02.01.2012

+        LPA 676/2010


         SURESH KUMAR JAIN                                 ..... Appellant
                     Through            None.

                     Versus

         UNION OF INDIA & ANR                           ......Respondents

Through Mr. M.K. Miglani, Advocate with Mr. Gaurav Miglani, Advocate

CORAM:

HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

A.K. SIKRI, ACTING CHIEF JUSTICE:

1. Nobody appears on behalf of the appellant inspite of pass over. We

have gone through the record with the assistance of the learned counsel for

the respondent.

2. The appellant had got the trademark "Laminated Veneer Lumber

(LVL)" registered in his name in class 19 in respect of doors, windows and

their frames for which certificate dated 16.8.2004 was issued in his favour,

granting the registration from the date of application i.e. 27th October, 1997.

The respondent no.2, M/s Jain Doors Private Ltd. (hereinafter referred to as

JDPL) challenged the said registration by moving rectification application

before the Intellectual Property Appellate Board, (hereinafter referred to as

„the IPAB‟). This application was allowed by the IPAB vide orders dated

16.11.2006.

3. Challenging that order, the petitioner had preferred writ petition

72/2007 that has been dismissed by the learned Single Judge of this Court

vide order dated 5th March, 2010, thereby affirming the order of the IPAB.

It is the said order of the learned Single Judge which is assailed by the

appellant by means of present appeal.

4. In the rectification application preferred by JDPL, the case set up by

the JDPL was that the claim of the appellant that it has been using the mark

since 1995 was not supported by any document and, therefore, the mark was

registered on false basis and the mark lacks distinctiveness and ought not to

have been registered in terms of Section 9 of the Trademarks Act, 1999.

According to JDPL, the trademark "Laminated Veneer Lumber (LVL)" was

generic in character and unless it acquired distinctiveness, such a name

could not have been registered.

5. The IPAB accepted both the submissions of JDPL. In the first

instance, on the basis of evidence produced by the appellant in the form of

invoices, it was held that the appellant was using mark "Laminated Veneer

Lumber (LVL)" since 1997 only and there was no document to show that the

appellant was using the trademark from 1st April, 1995 as claimed. On that

basis, IPAB held that the registration had been obtained by "false statement

and fraud". IPAB also held that the name "LVL" was very descriptive of the

goods and had not acquired any secondary meaning.

6. The learned Single Judge did not go into the second aspect. Perusal

of the impugned order would reveal that even before the learned Single

Judge, the appellant could not produce any evidence to show that the

appellant had been using the trademark since April, 1995 as claimed by the

appellant and the documents showed that the trademark in question had been

commercially exploited only from the year 1997. On this basis alone, the

learned Single Judge has affirmed the finding of the IPAB holding that the

trademark was registered on the basis of false statement and fraud.

7. The aforesaid finding of the IPAB is based on evidence on record

which has been accepted by the learned Single Judge. In this appeal, that

too, which arises from the order passed in the writ petition by the learned

Single Judge in exercise of his power under Article 226 of the Constitution

of India, this Court is not supposed to go into the factual findings recorded

by the IPAB which is a fact finding authority. Once we accept that the

appellant has not been able to place on record any evidence to show that the

appellant had been using the trademark since April, 1995 which was the

basis of seeking the registration, the conclusion would be that the

registration was obtained on the basis of false statement and would amount

to fraud.

8. We thus find that the order of the learned Single Judge is perfectly

valid and without any blemish and we do not find any merit in this appeal

which is accordingly dismissed. We may also record that the appellant had

even filed a suit for infringement of the trademark against JDPL in the Court

of learned Senior Civil Judge, Delhi which was ultimately dismissed as

withdrawn.

ACTING CHIEF JUSTICE

RAJIV SAHAI ENDLAW, J JANUARY 02, 2012 skb