Gujarat High Court
Chemo Healthcare Private Limited vs Examiner Of Trademarks on 18 July, 2025
NEUTRAL CITATION
C/CIA/14/2023 ORDER DATED: 18/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL APPEAL NO. 14 of 2023
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CHEMO HEALTHCARE PRIVATE LIMITED
Versus
EXAMINER OF TRADEMARKS & ANR.
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Appearance:
MR AKSHAY A VAKIL(5473) for the Petitioner(s) No. 1
ADVOCATE NOTICE SERVED for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 18/07/2025
ORAL ORDER
1. This appeal under Section 91 of the Trade Mark Act, 1999 (for short 'the Act, 1999') is filed challenging the order dated 23.05.2023 under which the registration sought by the appellant has been rejected.
2. Heard learned advocate Mr. Akshay Vakil for the appellant. Learned advocate for the appellant submitted that the appellant made an application under Section 18(1) of the Act, 1999 seeking registration of trade mark 'VILDAZE'. Upon application being made the same was examined and a report was prepared by Examiner of Trade Mark. In the said examination report the objections were raised to which the appellant responded. By placing reliance on the paperbook filed learned advocate submitted that a detailed reply was filed against the examination report (Page No. 13 of paperbook) Page 1 of 4 Uploaded by SHRIJIT PILLAI(HC01400) on Tue Jul 22 2025 Downloaded on : Tue Jul 22 21:34:26 IST 2025 NEUTRAL CITATION C/CIA/14/2023 ORDER DATED: 18/07/2025 undefined wherein the appellant has stated as under:-
"4. That the trademark VILDAZE is in use since 12-12-2019 and there is not a single litigation in respect of aforementioned trademark. Hence, the trademark VILDAZE is distinctiveand capable of distinguishing the goods of applicant company only.
5. That the trademarks registry has raised objection under Section 11(1) and three trademark applications are cited.
6. The trademark registration no 4362225 in class 5 for registration of trademark VILDAZEN is Proposed to be used trademark. While the trademark VILDAZE of the applicant company is used since 12-12-2019. Therefore prior user prevails even over the prior registration. Hence theobjection is not sustainable.
7. The trademark registration no 4362262 in class 5 for registration of trademark VILDAZEN- MET is Proposed to be used trademark. While the trademark VILDAZE of the applicant company is used since 12-12-2019. Therefore prior user prevails even over the prior registration. That the trademark are required to be seen as a whole and there is a difference in the trademarks. Hence the objection is not sustainable.
8. The trademark registration no 4492412 in class 5 for registration of trademark VILDAZEM is claimed user since 29-02-2020. While the trademark VILDAZE of the applicant company is used since 12-12-2019. Therefore prior user prevails even over the prior registration.. Hence the objection is not sustainable."Page 2 of 4 Uploaded by SHRIJIT PILLAI(HC01400) on Tue Jul 22 2025 Downloaded on : Tue Jul 22 21:34:26 IST 2025
NEUTRAL CITATION C/CIA/14/2023 ORDER DATED: 18/07/2025 undefined 2.1 Thus, it was submitted before the Examiner of Trade Mark that the objections raised under Section 11(1) of the Act, 1999 are required to be ignored since they are not sustainable in the eye of law. Reliance is also placed on the decision of Hon'ble Supreme Court in the case of Neon Laborartories Limited v.s. Medical Technologies Ltd. reported in MANU/SC 1192/2015.
2.2 However, ignoring the reply filed by the appellant, an order dated 23.05.2023 was passed which is subject matter of present appeal. Learned advocate further submitted that it is clear from the order dated 23.05.2023 that Examiner of Trade Mark has placed reliance upon the Trade Mark that are proposed to be used whereas the present appellant is prior user of the Trade Mark. Moreover, at this stage, the grievance of the appellant is that the mark is not published in Trade Mark journal and if the same is permitted the appellant would be in a position to establish prior use of trade mark and thereafter the objections, if any, by the third party can be considered at that stage.
2.3 Reliance has been placed by learned advocate for the appellant on Section 20 of the Act, 1999 to submit that even if the objections are there of Section 11(1) or Section 11(2) then also the advertisement of the trade mark is permitted.
2.4 Learned advocate for the appellant submitted that though the present appeal is filed in the year 2023 and notice served, till date no appearance has been filed on behalf of the Page 3 of 4 Uploaded by SHRIJIT PILLAI(HC01400) on Tue Jul 22 2025 Downloaded on : Tue Jul 22 21:34:26 IST 2025 NEUTRAL CITATION C/CIA/14/2023 ORDER DATED: 18/07/2025 undefined respondent.
5. Considering the submissions and noticing that Section 20 of the Act, 1999 permits advertisement despite objections under Section 11(1) of the Act, 1999, following order is passed:-
5.1 The present appeal is allowed and the impugned order dated 23.05.2023 is quashed and set aside.
5.2 The Trade Mark Registry is directed to proceed with the advertisement of subject application as per the proviso to Section 20 of the Act, 1999. Let the same be done within a period of 3 months from the date of receipt of this order.
5.3 If there is any opposition to the said application, the same shall be decided on its own merits.
5.4 The Registry of this Court is directed to supply a copy of the order to the Trade Mark Registry.
6. In view of above, present appeal is disposed of.
(MAUNA M. BHATT,J) SHRIJIT PILLAI Page 4 of 4 Uploaded by SHRIJIT PILLAI(HC01400) on Tue Jul 22 2025 Downloaded on : Tue Jul 22 21:34:26 IST 2025