Gujarat High Court
Parag Kirnkumar Tatariya vs Mahle Gmbh on 6 December, 2023
Author: Sunita Agarwal
Bench: Sunita Agarwal
NEUTRAL CITATION
C/LPA/1426/2023 ORDER DATED: 06/12/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1426 of 2023
In R/SPECIAL CIVIL APPLICATION NO. 11855 of 2021
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/LETTERS PATENT APPEAL NO. 1426 of 2023
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PARAG KIRNKUMAR TATARIYA
Versus
MAHLE GMBH
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Appearance:
MR HARSHIT S. TOLIA WITH MR KEDAR G DAVE WITH MR TEJAS S
TRIVEDI (5692) for the Appellant(s) No. 1
for the Respondent(s) No. 2
MR AMOL DIKKSHIT SR. COUNSEL WITH MR ABHST THAKER (7010) for
the Respondent(s) No. 1
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CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE
SUNITA AGARWAL
and
HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
Date : 06/12/2023
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL) This is an intra-court appeal directed against the judgment and order dated 9.11.2023 passed by the learned Single Judge invoking the jurisdiction under Article 226 of the Constitution of India to grant prayer made in the writ petition to cancel the registration of trademark No.2897507 in respect of 'Lubricants Oil and Grease included in Class-04' on the Register of Trademark.
2. The challenge to the said decision is on two Page 1 of 5 Downloaded on : Thu Dec 07 20:41:47 IST 2023 NEUTRAL CITATION C/LPA/1426/2023 ORDER DATED: 06/12/2023 undefined grounds. Firstly, that extraordinary writ jurisdiction under Article 226 of the Constitution of India could not have been invoked by the learned Single Judge in view of the statutory remedy as prescribed under Section 47 read with Section 57 of the Trade Marks Act, 1999. The aforesaid provisions have been placed before the Court to demonstrate that though the jurisdiction of the High Court and the Registrar within the meaning of the Trade Marks Act, 1999 is concurrent, but the proceedings for cancellation or varying registration and to rectify the registered cannot be invoked by exercising extraordinary jurisdiction vested in the High Court under Article 226 of the Constitution of India. The Second submission is that the Court deciding the writ petition was not having roster to deal with the cases under the Trade Marks Act, 1999 as per the roster assigned by the Chief Justice of the High Court.
3. On these submissions, Shri Anmol Dikkshit, the learned Senior Counsel assisted by Shri Abhist Thaker could not give any plausible answer. Only this much is submitted that the writ petitioner has a remedy to approach the High Court in view of Section 47 read with Section 57 of the Trade Marks Act, 1999 and therefore, no Page 2 of 5 Downloaded on : Thu Dec 07 20:41:47 IST 2023 NEUTRAL CITATION C/LPA/1426/2023 ORDER DATED: 06/12/2023 undefined infirmity can be attached to the writ petition filed by the respondent under Article 226 of the Constitution of India.
4. It is further argued that on the date of presentation of the writ petition, the Appellate Board was not in existence and as such no Forum was available to the petitioner. This submission is found misconceived, inasmuch as, prior to the amendment brought by the Act No.31 of 2021 w.e.f. 4.4.2021, there was concurrent jurisdiction with the Registrar or the Appellate Board. The Registrar as defined under Section 2(y) of the Trade Marks Act, 1999, appointed by the Central Government by Notification in the Official Gazette in accordance with Section 3 in Chapter II of the Trade Marks Act, 1999 could have been approached, in case the Appellate Board was not constituted by then. It is not the case of the petitioner that there was no appointment of the Registrar in accordance with Section 3 of the Trade Marks Act, 1999.
5. We find substance in the argument of the learned counsel for the appellant, inasmuch as, the jurisdiction of the High Court under the Trade Marks Act, 1999 as per Section 47 read with Section 57 has to be invoked by moving a proper Page 3 of 5 Downloaded on : Thu Dec 07 20:41:47 IST 2023 NEUTRAL CITATION C/LPA/1426/2023 ORDER DATED: 06/12/2023 undefined application in the prescribed manner as stated therein. The High Court has framed Rules under the Trademarks Act, 1999 bearing Rule No.2 of 2022 which came into force on 29.4.2022 by bringing Chapter XXXIII in the Gujarat High Court Rules, 1993 which provides the mode and manner of filing applications and appeals under the Trade Marks Act, 1999 as per the amendment brought w.e.f. 4.4.2021 by the Tribunals Reforms Act, 2022 Act No.31 of 2021.
6. As the procedure prescribed for filing of application or the appeal under Section 47 read with Section 57 of the Trade Marks Act, 1999 has not been followed and further, the invocation of the extraordinary jurisdiction by the learned Single Judge was an error apparent on the face of the record, we find infirmity in the order passed by the learned Single Judge. This apart, as per the roster assigned by the Chief Justice, on the date of decision in the matter i.e. 9.11.2023, the matters pertaining to the Trade Marks Act, 1999 were assigned to another Bench. It seems that this fact was not brought before the learned Single Judge which has to led to passing of the order impugned.
7. For the above reasons, while setting aside Page 4 of 5 Downloaded on : Thu Dec 07 20:41:47 IST 2023 NEUTRAL CITATION C/LPA/1426/2023 ORDER DATED: 06/12/2023 undefined the judgment and order dated 9.11.2023, we dismiss the writ petition being not maintainable. However, liberty is with the petitioner / respondent herein to approach the High Court by adhering to the procedure of the Rules contained under Chapter XXXIII of the Gujarat High Court Rules, 1993 framed under the Trade Marks Act, 1999.
The Letters Patent Appeal accordingly, stands disposed of.
Connected Civil Application for stay also stands disposed of.
(SUNITA AGARWAL, CJ ) (ANIRUDDHA P. MAYEE, J.) KAUSHIK D. CHAUHAN Page 5 of 5 Downloaded on : Thu Dec 07 20:41:47 IST 2023