The trademark regime in India provides for a procedure,
whereby a mark may be rectified or varied. An application with
such a request may arise for various reasons, including certain
grounds that may have attracted rejection of the mark.
Examining one such mark, is the case of Vardhman Properties
Ltd. v. Vardhman Spinning & General Mills Ltd. &
Anr. 2008 (37) PTC 315 (IPAB) whereby the mark
"Vardhman" was slated to possess religious
connotation and hence was applied to be rectified on the
A rectification application had been filed for the removal
of "Vardhman" from the Trade Mark Register. The mark
is in use with respect to three trademarks, and the applicants
to the same are Directors of a Company of Jains, who closely
associate with the life, teaching and sect of "Lord
Mahavira", also known as Vardhman. Further, the applicants
have ten enterprises under the name Vardhman and have been
continuously using the same as a trading/business name. They
had also applied for the registration of "Vardhman
Group" for its group of companies.
Vardhman Spinning & General Mills Ltd. (hereinafter
Vardhman Spinning) had been granted in 1979. The applicants,
Vardhman Properties being unaware of the same, received a legal
notice in 2000 and thereby called upon to cease and desist from
infringing their trademark. The legal notice was replied to
stating that the business and activities of the two parties
were distinctive and separate. Vardhman Spinning proceeded to
move to Delhi High Court for the grant of an order of permanent
injunction and the same was countered on the plea of invalidity
and hence the instant rectification application.
The ground vouched in the petition was that
"Vardhman" was violative of S. 9(1) (d) and 9(1)(e)
of the Trade and Merchandise Marks Act, 1958 , in as much as it
was not an invented word and used in Jain Mythology, for over
two thousand years and hence ineligible to be Trade Mark
registered. They also asserted that being another name for Lord
Mahavira, granting a trademark was giving exclusive rights to
some, while preventing all others from using the name. They
also brought to the Registrar' attention that over two
hundred and thirty three companies had sought registration with
Vardhman as part of their name and logo. Hence they contended
that the trademark registration in favour of Vardhman Spinning
itself was invalid and barred under law.
Vardhman Spinning adopted the defence as regards the lapse
of distinctiveness after the lapse of seven years, as under
S.32. They contended that the mark had become their identity,
they were prior users and were seeking advantage of the
goodwill and reputation they had acquired. They also stated to
possess copyright over the design, layout, specific pictorial
representation and script. They also asserted that the mention
of the word "Vardhman" involved an instant
association with their enterprise, which is owed to the
reputation and goodwill that it acquired as a prior user.
Further, the two marks were said to be phonetically and
Both parties presented evidence to support their respective
contentions. The court in consideration of these and the
contentions laid, examined the meaning of "aggrieved
person" as under S. 56 of the Act. The Court observed that
a liberal interpretation to the same has been drawn in the past
by Courts, to include a person who has before registration used
the trademark and a person against whom an infringement action
is taken or threatened by the registered proprietor of the
trademark. In this view, the Court rendered Vardhman Properties
as a person aggrieved. The Court opined that in view of S. 32
as well as S.56 of the Act, after the lapse of seven years from
the date of registration, no objection as to the mark not being
distinctive cannot be raised, and hence the ground under S.9
failed to apply. The Court dismissed the application for
rectification, for the three marks in question, stating that no
case had been made out that invited a rectifying or varying
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