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Chawla Jewellers Pvt. Ltd vs M/S Chawla Jewellers & Anr on 27 January, 2023

Author: Sanjeev Narula

Bench: Sanjeev Narula

                          $~3
                          *     IN THE HIGH COURT OF DELHI AT NEW DELHI
                          +     C.O. (COMM.IPD-TM) 99/2022
                                CHAWLA JEWELLERS PVT. LTD                                  ..... Petitioner
                                                    Through:      Mr. Junaid Alam and Mr. Vishal
                                                                  Patel, Advocates.
                                                    versus

                                M/S CHAWLA JEWELLERS & ANR.                              ..... Respondent
                                                    Through:      Mr. Gaurav Arora, Mr. Himanshu
                                                                  Arora and Mr. Kamal Kishore,
                                                                  Advocates.

                                CORAM:
                                HON'BLE MR. JUSTICE SANJEEV NARULA
                                             ORDER

% 27.01.2023

1. Petitioner seeks cancellation of mark "Chawla Jewellers" registered under application No. 1409576 in favour of Respondent No. 1, in respect whereof Respondent/Plaintiff's suit for infringement is also pending before the District Court in Amritsar.

2. Counsel for Respondent No. 1 argues that present petition is not maintainable as Petitioner did not file an application under Section 124 of the Trademarks Act, 1999 before the court in Amritsar. He submits that in the aforesaid suit, Petitioner (Defendant therein) has not raised a plea of invalidity of registration in favour of Respondent No. 1, and in absence of the court being satisfied that such a plea of invalidity is prima facie tenable, present petition could not have been filed. He places reliance on judgement of High Court of Madras in M. Murali v. Sri Krishna Sweets Private Signature Not Verified Digitally Signed By:SAPNA SETHI Signing Date:27.01.2023 17:34:37 Limited.1

3. Per contra, Petitioner relies upon judgment in Anubhav Jain v. Satish Kumar Jain and Anr. dated 09th January, 2023,2 wherein, after considering the views expressed by the Supreme Court in Patel Field Marshal Agencies and Anr. v. P.M Diesels Ltd. and Ors.,3 a coordinate bench of this Court held that if Defendant has not raised a plea of invalidity of registration, a petition under Section 57 of the Trade Marks Act can be entertained without filing of an application under Section 124 before the concerned civil court. The bench observed that remedy under Section 57 of the Trade Marks Act is independent, and in addition to Section 124(1)(ii) of the said Act.

4. In view of the legal issue involved, the Court has requested Mr. Hemant Singh and Mr. Sushant Singh, Advocates who are present in Court, to render assistance in the present matter. Registry is directed to provide a copy of paper-book to them.

5. Parties are directed to file their brief note of submissions, not exceeding three pages, along with the relevant case law(s), in terms of IPD Rules, at least one week prior to the next date of hearing.

6. Re-notify on 23rd February, 2023.

SANJEEV NARULA, J JANUARY 27, 2023 as 1 2020 SCC OnLine Mad 1070.

C.O. (COMM.IPD-TM) 55/2021.

(2018) 2 SCC 112.