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11. While the above proceedings were in progress, the Tindivanam party filed 2 petitions namely (1) for Rectification of the Register in O.R.A.No. 1 of 2005 on the file of the Intellectual Property Appellate Board for the removal of the Delhi Partys trade mark and (2) for prosecution of the Delhi party under section 107 of the Act before the Registrar.

12. The rectification application filed by the Tindivanam party was partly allowed by the Board, by its order dated 15-3-2006 directing the Registrar to rectify the Register, restricting the area of operation of the Delhi party only to Delhi. Aggrieved by such a partial rectification ordered against them by the Board, the Delhi party has filed a civil revision petition in C.R.P.No.800 of 2006. The Tindivanam party also challenged the order passed in their rectification application, by way of a writ petition in W.P.25372 of 2006, contending that the Delhi party was not entitled to have the use of the trade mark even within Delhi.

(C) In so far as the Tindivanam Party is concerned, their fight was originally only with the Kangayam Party. But the institution of C.S.No.726 of 2004 by the Delhi Party, the filing of W.P.No.28352 of 2004 by the Delhi Party against the renewal of registration in favour of Tindivanam Party, the filing of a criminal complaint in C.C.No.26937 of 2004 by the Delhi Party against the Tindivanam Party and the assignment entered into between the Delhi Party and Kangayam Party on 5.10.2004, triggered a serious reaction by the Tindivanam Party filing two applications, against the Delhi Party one for rectification of Register in ORA No.1 of 2005 on the file of the Appellate Board and the other for prosecution under Section 107 of the Trade Marks Act, 1999 on the file of the Registrar. The Tindivanam Party was partly successful in their application for rectification, since the Appellate Board allowed ORA No.1 of 2005 partly on 15.3.2006, directing the Registrar to restrict the area of operation of the Delhi Party within the territorial of Delhi only. This order of the Appellate Board passed in ORA No.1 of 2005 has given rise to two sets of proceedings, one by the Delhi Party filing CRP No.800 of 2006 and the other by the Tindivanam Party filing W.P.No.25372 of 2006. Therefore, if the order of the Appellate Board in ORA No.1 of 2005 is tested, the rights of the Delhi Party vis-`-vis Tindivanam Party could be determined.

(a) if any proceedings for rectification of the register in relation to the plaintiffs or defendants trade mark are pending before the Registrar or the Appellate Board, stay the suit pending the final disposal of such proceedings;

(b) If no such proceedings are pending and the court is satisfied that the plea regarding the invalidity of the registration of the plaintiffs or defendants trade mark is prima facie tenable, raise an issue regarding the same and adjourn the case for a period of three months from the date of the framing of the issue in order to enable the party concerned to apply to the Appellate Board for rectification of the register.

(X) In this case, the requirements of Section 47(1)(a) or (b), are not even pleaded properly by Tindivanam Party in their application for rectification filed on 19.1.2005 before the Appellate Board. In ground No.(c) after paragraph 12 of their application for rectification filed before the Appellate Board in ORA No.1 of 2005, the Tindivanam Party merely made a passing reference to Section 47 of the Act by pleading that the Delhi Party was not doing business with the trade mark and using the same for illegal purpose and that the trade mark was not used for bona fide purpose and liable to be removed under Section 47. Again in ground No.(d), the Tindivanam Party referred to Section 47 of the Act, just for the purpose of drawing an inference that there was no bona fide use of the trade mark in view of the civil suit and writ petition filed by the Delhi Party. Apart from these vague pleadings, the Tindivanam Party failed to satisfy the requirements of Section 47(1)(a) or (b) even in their application for rectification. As stated above, to attract Section 47(1)(a), the registration of the mark itself should be shown to have been made without any bona fide intention of using the same and it must also be shown that there was, as a matter of fact, no bona fide use of the trade mark for a period of three months. A vague pleading that there was no bona fide use by the registered proprietor, would not satisfy the twin requirements of Section 47(1)(a). Similarly, to attract Section 47(1)(b), the applicant should satisfy the non-user for a continuous period of five years upto a date three months before the date of the application. There is no pleading by the Tindivanam Party even with reference to this requirement under Section 47(1)(b). Therefore, the second ground on which the Tindivanam Party sought rectification of Register for removing the trade mark of the Delhi Party, also fails.