Delhi High Court
Three-N-Products Private ... vs Union Of India & Ors. on 5 October, 2012
Author: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 5th October, 2012
+ LPA No.637/2012
% THREE-N-PRODUCTS PRIVATE LIMITED ....Appellant
Through: Mr. Sudhir Chandra Agarwal, Sr.
Adv. with Mr. Aayushmaan Gauba,
Ms. Sonal Madan & Ms. Simrat
Kaur, Advs.
Versus
UNION OF INDIA & ORS. ..... Respondents
Through: Mr. Sandeep Sethi, Sr. Adv. with
Mr. Saif Khan & Mr. Ajay Rao,
Advs. for R-5/HUL.
CORAM :-
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
RAJIV SAHAI ENDLAW, J.
1. This Intra-Court appeal impugns the order dated 23 rd July, 2012 of the
learned Single Judge disposing the application of the appellant for interim
relief, during the pendency of W.P.(C) No.4321/2012 preferred by the
appellant in the following manner:-
"Any steps taken pursuant to the impugned decision will
be subject to the final outcome in the writ petition.
Accordingly, CM No.8969/2012 stands disposed of."
2. The aforesaid writ petition has been preferred by the appellant
impugning the order dated 18 th May, 2012 of the Intellectual Property
Appellate Board (IPAB) allowing applications preferred by the respondent
no.5 herein namely Hindustan Unilever Limited (HUL) for removal of the
trademarks registered by the appellant. The IPAB accordingly has directed
removal of the marks of the appellant from the Register of Trademarks.
3. Notice of this appeal was issued and the senior counsel for the
appellant and the senior counsel for the respondent no.5 HUL have been
heard.
4. The senior counsel for the appellant, on instructions, has confined the
relief clamed in this appeal to the restraint of removal of the trademark of
the appellant from the Register of Trademarks in compliance of the order
dated 18th May, 2012 of the IPAB, till the decision of the writ petition. He
has further stated that the appellant, till the decision of the writ petition shall
not take advantage of the registration which has been directed by the IPAB
to be removed, vis-à-vis the respondent no.5 HUL. He has argued that the
marks of the appellants were registered and remained registered for a period
of nearly 30 years; that the appellant has instituted various proceedings
against others for infringement of the said mark and which proceedings
would be adversely affected unless the removal of the mark pursuant to the
order of the IPAB is stayed and in the absence thereof the appellant shall
suffer irreparably even if the writ petition is to ultimately succeed and the
order of the IPAB set aside. It is urged that on the contrary, in view of the
statement given by the appellant, the respondent no.5 HUL will not be
affected if the removal from the Register is so restrained during the
pendency of the writ petition. The senior counsel for the appellant has also
contended and sought to argue that the appellant has a prima facie case in
the writ petition and good chances of succeeding in the writ petition.
5. The senior counsel for the respondent no.5 HUL has contended that
besides the applications decided by the IPAB, several other applications
filed by the respondent no.5 HUL as well as by other parties for removal of
the other similar marks got registered by the appellant, on similar grounds,
are pending consideration before the IPAB; however the IPAB has
adjourned the said proceedings awaiting the decision in the writ petition. It
is thus urged that the interim arrangement aforesaid already granted by the
learned Single Judge sufficiently protects the interest of the appellant. Of
course, it is also contended that the order of the IPAB is correct and there
are no merits in the writ petition preferred by the appellant. It is further
argued that the appellant took its own sweet time of slightly over two
months in preferring the writ petition aforesaid against the order of the
IPAB and a further time of nearly two months in preferring this appeal;
rather the appeal is delayed and accompanied with an application for
condonation of delay of 19 days. It is thus contended that the appellant has
not shown any hurry in having the order of the IPAB stayed and is not
entitled to the relief sought on this ground alone.
6. The application decided by the IPAB was of the respondent no.5
HUL alone. There is no other opposition at present and the other oppositions
if any to registration are pending consideration before the IPAB. We are of
the opinion that considering the long period of 30 years for which the
appellant enjoyed the registration and further considering the statement on
behalf of the appellant to not use continuance of the marks on the Register
in pursuance to the interim order vis-à-vis respondent no.5 HUL and which
sufficiently protects the interest of the respondent no.5 HUL, and without
expressing any opinion on the merits (and which may affect the decision in
the writ petition), the appellant is entitled to the interim relief of restraining
the removal of the marks in pursuance to the order of the IPAB from the
Register till the decision of the writ petition.
7. We accordingly, for the reasons stated, condone the delay in filing the
appeal, allow this appeal by modifying the interim order already granted by
the learned Single Judge by directing that the marks ordered to be removed
under the order aforesaid of the IPAB, be not removed from the Register till
the decision of the writ petition. This is however subject to the statement
given by the appellant and which is accepted and by which the appellant is
ordered to be bound.
8. We reiterate that nothing contained herein shall be deemed to be an
expression of opinion on the merits of the case and aforesaid order is merely
for the reason of the long period of 30 years for which the registration had
continued and for the reason of the statement made by the appellant vis-à-
vis the respondent no.5 HUL.
The appeal is disposed of. No costs.
RAJIV SAHAI ENDLAW, J
CHIEF JUSTICE
OCTOBER 5, 2012
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