Delhi High Court - Orders
Zydus Healthcare Limited vs Registrar Of Trade Marks, New Delhi on 30 October, 2023
Author: Prathiba M. Singh
Bench: Prathiba M. Singh
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ C.A.(COMM.IPD-TM) 162/2021
ZYDUS HEALTHCARE LIMITED ..... Appellant
Through: Mr. Philip Abraham & Mr. Manish
Kumar, Advs. (M. 9717506400).
Versus
REGISTRAR OF TRADE MARKS,
NEW DELHI ..... Respondent
Through: Mr. Harish V. Shankar, CGSC, Mr.
Srish Kumar Mishra, Mr. Sagar
Mehlawat, Mr. Alexander Mathai
Paikaday & Mr. M. Sriram & Mr.
Krishnan V., Advocates.
CORAM:
JUSTICE PRATHIBA M. SINGH
ORDER
% 30.10.2023
1. This hearing has been done through hybrid mode.
2. The present appeal filed under Section 91 of the Trade Marks Act, 1999 challenges the refusal by the Respondent- Registrar of Trade Mark of the grant of the trademark application of the Appellant- Zydus Healthcare Ltd. bearing no. 1755582 in Class 05, dated 19th November 2008 for the mark "AXETEN".
3. Vide impugned order dated 17th October 2018, Respondent refused to grant the application and directed as follows:
"A Hearing in respect of the above matter came up before me on 17/10/2018 and the following is to be communicated to the applicant/agent:. * Mr. Philip applicant/Advocate/Agent appeared before me and made his submissions. I have heard arguments, gone through the records and passed the 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 31/10/2023 at 21:50:07 following Order.
* The trade mark applied for is objectionable under Section 9/11 of the Act. The application is accordingly refused.
Attention is invited under Rule 36(1) of the Trade Marks Rules,2017 where the application is refused a request may be made in form no. TM-M along with the prescribed fee to communicate in writing the grounds of decision and materials used by the Registrar in arriving at his decision to refuse the said application. The said request on form TM-M should be tendered within 30 days of receipt of the order of refusal."
4. After hearing some submissions, it appears that the Appellant has filed another trademark application being application no. 1772512 dated 9th January, 2009, on a proposed to be used basis for pharmaceutical preparations. This application has already proceeded to advertisement in the Trade Marks Journal No. 1854 dated 18th June 2018.
5. The said device mark 'AXETEN' is stated to have been opposed by one M/s Tridoss Laboratories Private Limited, and the opposition bearing no. 955489 dated 17th October 2018 is pending.
6. The Appellant's case is that the mark 'AXETEN' has been obtained through assignment dated 28th December, 2016 by paying a substantial consideration. The Appellant also has invested in the mark 'AXETEN' as the Appellant's products have been launched and are openly sold in the market without any opposition.
7. No suit has been filed till date by any party against the Plaintiff. Considering this background, let the opposition proceedings to trademark application no. 1772512, wherein the proceedings are stated to be at the stage of evidence, be decided within next four months in order to ensure that 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 31/10/2023 at 21:50:07 any order passed by this Court in the present appeal, does not have an impact on the said opposition proceedings.
8. Let the order passed by the Respondent in the opposition proceedings in opposition bearing no. 955489 after being decided, be placed before this Court before the next date of hearing.
9. List on 27th March, 2024.
PRATHIBA M. SINGH, J.
OCTOBER 30, 2023 mr/dn 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 31/10/2023 at 21:50:08