Delhi High Court - Orders
Shree Umiya Surgical Pvt Ltd vs The Registrar Of Trade Marks & Anr on 16 February, 2026
Author: Tushar Rao Gedela
Bench: Tushar Rao Gedela
$~43
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ C.A.(COMM.IPD-TM) 11/2026 & I.A. 4229/2026 (Stay)
SHREE UMIYA SURGICAL PVT LTD .....Appellant
Through: Mr. Kunal Khanna, Mr. Abhiraj Jayant,
Mr. Rishabh Gupta, Mr. Nilesh Nayak
and Mr. Zahid Shaikh, Advocates.
versus
THE REGISTRAR OF TRADE MARKS & ANR. .....Respondents
Through: Mr. Gaurav Barathi, SPC alongwith Mr.
Debasish Mishra, G.P. for Registrar of
Trade Marks/R-1.
Mr. Shailen Bhatia, Mr. Amit Jain, Ms.
Deeksha Gulati and Mr. Bhavesh,
Advocates for R-2.
CORAM:
HON'BLE MR. JUSTICE TUSHAR RAO GEDELA
ORDER
% 16.02.2026
I.A. 4230/2026 (Delay)
1. This is an application under Section 151 of CPC and Section 91(2) of the Trademarks Act, 1999 filed on behalf of the appellant seeking condonation of delay of 64 days in filing the present appeal.
2. For the reasons stated, the application is allowed and delay of 64 days in filing the appeal is condoned.
3. The application is disposed of.
I.A. 4231/2026 (Exemption from filing certified copies)
4. This is an application under Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'CPC') filed on behalf of appellant seeking exemption from filing certified copies of the documents.
C.A.(COMM.IPD-TM) 11/2026 Page 1 of 7This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 19/02/2026 at 20:33:08
5. Exemption allowed subject to all just exceptions. The certified copies of the documents be filed within two weeks with an advance copy to the defendants.
6. The application stands disposed of.
I.A. 4232/2026 (Exemption from filing clear and legible copies)
7. This is an application under Section 151 of CPC filed on behalf of the appellant seeking exemption from filing clear and legible copies of the documents.
8. Exemption allowed subject to just exceptions. The clear and legible copies of the documents be filed within two weeks with an advance copy to the defendant.
9. The application stands disposed of.
C.A.(COMM.IPD-TM) 11/2026
10. The present appeal has been filed under Section 91 of the Trademarks Act, 1999 read with Rule 156 of the Trademarks Rules, 2017, challenging the order dated 08.09.2025 passed by the Registrar of Trade Marks/respondent no.1 in Opposition No.1264964.
11. The grievance of the appellant arises from the fact that the respondent no.1 has asserted, vide e-mail dated 22.04.2024, that the counter statement of M/s Mediplus (India) Limited/respondent no.2 was shown as served upon the appellant on the online status of the trademark application. It is the assertion of the learned counsel appearing for the appellant that no such e-mail or counter statement was ever served upon the attorney of the appellant. In support thereof, learned counsel invites attention to the document, which according to him, is a complete record of the e-mails sent by the Trade Marks Registry from 06.04.2024 upto 30.04.2024, commencing from page 129 of the appeal.
12. He also asserts that the appellant, through its attorney, had filed an C.A.(COMM.IPD-TM) 11/2026 Page 2 of 7 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 19/02/2026 at 20:33:08 affidavit on 26.08.2025 clearly stating that the counter statement was never served upon the appellant or the agent on 22.04.2024. It is on account of non-service of the counter statement that the evidence in opposition could not be filed. He invites attention to the impugned order dated 08.09.2025 to submit that it is absolutely bereft of any reference to the affidavit dated 26.04.2025 filed by the appellant whereby the attention of the Assistant Registrar of Trade Marks to the fact of non-service of the counter statement on 22.04.2024 was drawn. He submits that there is no reference to the said affidavit at all.
13. That apart, he also further submits that a review petition against the said impugned order passed by the Assistant Registrar, was filed on 22.09.2025, which is within 30 days of the time stipulated in Rule 119 of the Trade Marks Rules, 2017 (hereinafter referred to as "TM Rules"). He submits that the review petition was, in fact, served upon the Trade Marks Registry on 22.09.2025 and surprisingly, on 23.09.2025, the respondent no.1 i.e. the Assistant Registrar issued the impugned registration certificate in favour of respondent no.2.
14. He further submits that, between the parties, the appellant had secured an ad-interim injunction against respondent no.2 in CS 1012/2004.
15. On facts, learned counsel submits that the trademark "MEDIPLUS" was adopted by the appellant in the year 1988 and on 15.04.1997, the appellant had applied for registration of the trademarks in Class 10 vide Application no.742037 before the Trade Marks Registry. The said trademark was advertised in the Trade Marks Journal no.1340 on 15.03.2006, and the Registration Certificate was issued to the appellant on 17.07.2007.
16. The appellant claims that respondent no.2 applied for a trademark "MEDIPLUS" before the Trade Marks Registry, Delhi, vide Application no.4889393 in Class 44 on 04.03.2021. The said trademark was published in the Trade Marks Journal no.2130 on 13.11.2023.
17. It is appellant's case that the moment the appellant came to realise the C.A.(COMM.IPD-TM) 11/2026 Page 3 of 7 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 19/02/2026 at 20:33:08 publication in the Trade Marks Journal, the appellant on 20.12.2023, filed an opposition to the said application. It is stated that on 06.04.2024, the respondent no.2 had filed a counter statement in reply to the opposition filed by the appellant. It is also further stated that as per the records of the Trade Marks Registry, on 22.04.2024, the counter statement of respondent no.2 was shown to have been served upon the appellant. It is this e-mail, which is the subject matter of dispute before this Court.
18. Learned counsel for the appellant relies upon the judgment dated 02.04.2025 of this Court in Mars Incorporated vs. The Registrar of Trademarks & Ors., in C.A. (COMM.IPD-RM) 88/2024, particularly para
36.
19. Mr. Bhatia, learned counsel appearing for respondent no.2, vehemently disputes the submission made by learned counsel for the appellant. He vehemently disputes that the user date of adoption of the appellant is from 1988. He submits that under Rule 45 of the TM Rules, a period of two months is prescribed from the date of service of the copies of counter statement, the opponent may file such evidence by way of an affidavit, as he may have desired to adduce in order to oppose the application seeking registration of the trademark.
20. In particular, Mr. Bhatia draws attention of this Court to sub-Rule (2) of Rule 45 of the TM Rules, which provides that in case no action under sub-Rule (1) of Rule 45 of the TM Rules within the time period stipulated i.e. two months is undertaken, then such an opponent shall be deemed to have abandoned the opposition itself. Mr. Bhatia further submits that the appellant sat over its rights for more than one and a half years and therefore, in terms of sub-Rule (2) of Rule 45 of the TM Rules is deemed to have abandoned its opposition.
21. He submits that on the same day i.e., 22.04.2024, when the appellant incorrectly claims that no notice or e-mail was served upon the appellant, an C.A.(COMM.IPD-TM) 11/2026 Page 4 of 7 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 19/02/2026 at 20:33:08 e-mail and a letter dated 22.04.2024 was indeed served upon the respondent no.2. He also submits that the information in regard to the controversy in question was also simultaneously uploaded on the website, which is also accessible to the appellant. He submits that no reason as to why the appellant has not accessed the official website to obtain the information regarding the counter statement has been explained or furnished. In such circumstances, he submits that once the appellant is deemed to have abandoned its opposition, the impugned order is principally and legally correct. He also submits that the issue as to whether the appellant has received the counter statement or not, is within the knowledge of the Registry and the appellant as well. For that reason, no fault can be attributed to respondent no.2.
22. Mr. Bhatia, learned counsel for respondent no.2 submits that the judgment dated 02.04.2025 of this Court in Mars Incorporated vs. The Registrar of Trademarks & Ors., in C.A. (COMM.IPD-RM) 88/2024 is not applicable to the facts of the present case.
23. Mr. Gaurav Barathi, learned Senior Panel Counsel appearing for respondent no.1 submits that he has not received a copy of the appeal, paper book.
24. This Court has heard and considered the arguments of learned counsel for the parties.
25. On the face of it, prima facie, the order dated 08.09.2025 is bereft of any reference to the affidavit dated 26.08.2025 filed by the appellant. The affidavit dated 26.08.2025 states as under:
"In connection with the above opposition matter, we hereby declare that as per the record of the Trade Marks Registry, the applicant has filed the Counter-Statement on 22nd April, 2024; serving notice of the said Counter-Statement is shown in the status of the application. But unfortunately the agent/Attorney of the opponent has not received the email of the said intimation. Hence, the opponent could not file any evidences under Rule 45.
We are enclosing herewith the copy of the Correspondence/Notice C.A.(COMM.IPD-TM) 11/2026 Page 5 of 7 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 19/02/2026 at 20:33:08 History from 06/04/2024 to 30/04/2024 under the Trade Marks of Attorney Code 1822 in the name of H K Acharya & Co. as well as record of the received Email on 06/04/2024 to 30/04/2024 of the opponent's attorney Email Address of [email protected] as Annexure "A"."
26. This Court has also perused the record of the e-mails placed in the file commencing from page 129 of the paperbook, which, prima facie, indicate that, as on 22.04.2024, no service of e-mail in respect of furnishing the counter statement was despatched to the appellant. As per the list on 22.04.2024, an e-mail despatched, indicates that service of the reply to the examination report was sent to some party but not the appellant. It is clear from a perusal of Serial No.56 that it pertains to Application Reference No.4972558 and not to Application Reference No.4889393, pertaining to respondent no.2.
27. It is also relevant to note that the appellant had also filed a petition on 26.09.2025 seeking review of the impugned order dated 08.09.2025. However, while no order on the review petition was passed by respondent no.1, peculiarly, on 23.09.2025, the respondent no.1 indeed issued a certification of registration in favour of respondent no.2.
28. The aforesaid aspect of the matter requires consideration by this Court. Prima facie, it appears that respondent no.1 has not acted in accordance with the statutory provisions and has not appropriately dealt with the issue raised by the appellant.
29. In view of the above, it appears that it would be apposite to keep the order dated 08.09.2025 in abeyance till the time the respondent no.1 files a detailed affidavit in respect of the service of the counter statement on 22.04.2024 upon the appellant by e-mail. Respondent no.1 shall also clearly deal with the documents placed at page 129, showing the various e-mails claimed to have been sent by the Trade Marks Registry particularly during the period from 06.04.2024 to 30.04.2024, with specific reference to the e-mail C.A.(COMM.IPD-TM) 11/2026 Page 6 of 7 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 19/02/2026 at 20:33:08 dated 22.04.2024. The despatch of the e-mail, the correct address and the status as to whether the e-mail was received by the appellant or not shall also be clearly specified by respondent no.1.
30. So far as the submission of Mr. Bhatia in respect of the e-mails having been received by respondent no.2 it on 22.04.2024, as also the information being made available upon the official website is concerned, the respondent no.2 is at liberty to file an affidavit. However, it is to be noted that the document dated 22.04.2024 handed over by Mr. Bhatia, is only a letter and not an e-mail. This document is taken on record. Thus, the question as to whether the mandate upon the Registrar to effect service of the counter statement would be fulfilled by merely uploading a document of this nature, available on the website will have to be considered by this Court.
31. Let the affidavit of respondent no.1 be filed within ten (10) days.
32. List on 02.03.2026. Matter to be placed 'High on Board'.
TUSHAR RAO GEDELA, J FEBRUARY 16, 2026 kct C.A.(COMM.IPD-TM) 11/2026 Page 7 of 7 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 19/02/2026 at 20:33:08