India: IPAB Holds That Purity Of Register Is The Mandate Of Public Interest

Last Updated: 15 September 2007
Article by Manisha Singh Nair

The fundamental object of the Section 57 of the Trademarks Act, 1999 is to maintain the purity of the Register and to attain that goal, the Act allow any person aggrieved, by way of an application, to cause the Registrar or Intellectual Property Appellate Board (IPAB), as the case may be, to cancel, vary or rectify the entry wrongly made or remaining on the Register. The IPAB in Jain Doors Pvt. Ltd. v. Suresh Kumar Jain 2007 (34) PTC 731 (IPAB) held that in ascertaining whether the applicant was an aggrieved person to apply for rectification, the locus standi would be ascertained very liberally as it was vital in the interest of the public to remove such wrongful entries.

Suresh Kumar Jain/Respondent, the registered proprietor of the trademark ‘Laminated Veneer Lumber’ (LVL) was engaged in the business of manufacturing and marketing of panel door shutters. Jain Doors/Applicants were also engaged in similar business using the expression Laminated Veneer Lumber (LVL) in respect of their goods,which impelled them to file rectification application alleging that the expression Laminated Veneer Lumber is a generic and common description in respect of such goods and was already adopted and used not only by the applicant but also by many others carrying on similar trade. Apart from contending that the mark was descriptive in nature, Jain Doors alleged oversight on the part of Registry in accepting the impugned mark, without any bona fide use in relation to the goods. But even prior to the initiation of rectification proceedings, Suresh Kumar had initiated criminal proceedings against Jain Doors on the ground of trademark violation before the Delhi High Court and the same was pending adjudication when the rectification proceedings were initiated.

Further, in the rectification application, Jain Doors pointed out to the Board that the mark was not been in use for more than five years and three months prior to the filing of application and hence lacked acquired distinctiveness, contrary to absolute grounds for refusal of registration under the Act, therefore not registrable.

In order to assert that the mark was descriptive in nature, Jain Doors placed on record many reports of governmental and non- governmental organizations which depicted that the Laminated Veneer Lumber was the name of a material or technology used by several people.

On the other hand, the respondents pleaded to dismiss the application on the ground that as it was barred by limitation. Further that the proceedings were bad on misjoinder of parties as the Registrar was not made party to the proceedings.

The IPAB took into consideration two questions.

  1. whether the applicant was an aggrieved person.
  2. whether the mark was obtained by fraud and false statement as to user.

As per section 57 of the Trademark Act, 1999 the application for rectification of the register can be made only by a ‘person interested’ and the Board held that the criminal action initiated earlier against the Applicant brought him within the purview of ‘aggrieved person’ under the statute. The Board further went on to hold that it would give a liberal interpretation for ascertaining the locus standi as the purity of register was the mandate of public interest.

On the question whether the registration was obtained by fraud, it was found by the Board that Suresh Kumar was only a dealer of the product since 1997. No document was placed on record to show that Suresh Kumar was the owner of the trademark since 1995 as claimed in their application for registration, hence the Board reached the conclusion that it was obtained by fraud. The Board found that the impugned mark was identical to that of the applicants mark likely to cause confusion or deception thus violating section 11 (a) of the Trademark Act, 1999. Consequently it was directed to rectify the Register by removing the mark from it.

The case reiterates the settled proposition framed in Toshiba Corporation v. Toshiba Appliances (1994) PTC 53 that locus standi is to be determined on the principles akin to those in public interest litigation than in private ones because a rectification application seeks to achieve the object of purifying the register which is a public purpose.

© Lex Orbis 2007

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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