Mr P.C. Duraisamy vs Kewal Krishan Kumar & Anr
- Court
- Delhi High Court
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgement reserved on: 16.03.2026
Judgement delivered on: 24.06.2026
+ C.O. (COMM.IPD-TM) 180/2022
MR P.C. DURAISAMY .....Petitioner
versus
KEWAL KRISHAN KUMAR & ANR .....Respondents
Advocates who appeared in this case:
For the Petitioner : Mr. Kumar Sudeep, Advocate.
For the Respondents : Mr. Neeraj Grover, Mr. Angad Deep Singh,
Ms. Mohona Sarkar and Ms. Riya Luthra,
Advocates for R-3.
CORAM:
HON'BLE MR. JUSTICE TUSHAR RAO GEDELA
J U D G E M E N T
TUSHAR RAO GEDELA, J.
1. The present petition has been filed seeking removing, expunging or
cancelling the trademark “SHAKTI” registered under no.701410 in Class 30
in the name of respondent no.1 from the Register of Trade Marks under
Section 47(1)(a) and 47(1)(b), and 57(2) of the Trade Marks Act, 1999
(hereinafter referred to as ‘Act’ ).
2. Facts as culled out from the petition are as under:
(a) Petitioner claims to be a leading manufacturer of food products,
and in the course of the said business, had honestly conceived and
adopted the trademark “SAKTHI” as its trade name, trading style, and
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trademark since the year 1977. Petitioner manufactures food products
including varieties of spice and masala powders, edible oils, pickles,
flour and papad. Petitioner claims that its products are available PAN
India and are also exported to various countries like Australia, Europe,
Malaysia, Singapore, South Korea, United States of America, and other
west-Asian countries.
(b) The petitioner claims to have obtained multiple registrations of
the trademark “SAKTHI”, primarily for Classes 29 and 30, and other
classes as well, which are valid and subsisting till date.
(c) Petitioner claims to have adopted a logo for its house mark
“SAKTHI” which contains distinctive artistic devices, colour scheme,
and arrangement of features that are unique and identifiable by the
trade and public. Petitioner states that the said logo is protected under
the Copyright Act for the artistic works.
(d) Petitioner also claims that by way of an Agreement dated
01.06.1998, it appointed a company under the name and style of ‘Sakthi
Masala Private Limited’ as its exclusive licensee to manufacture, sell,
market and distribute its products worldwide. In para 9(i) of the petition
(Form-1), the petitioner has enlisted the awards and accolades received
by it in the last 40-45 years. Petitioner also contends that on account of
the high quality products manufactured by it under the trademark
“SAKTHI”, the said products have become immensely popular PAN
India. The petitioner also claims to have achieved high sales turnover
running into crores of rupees every year. The petitioner also states that
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it promotes its brand by sponsoring various shows on television
channels, etc. apart from widely advertising the mark “SAKTHI” in all
kinds of media including audio, visual, and print. According to the
petitioner, on account of the aforesaid facts, the mark “SAKTHI” has
garnered substantial goodwill and immense reputation in the last four
decades.
(e) Petitioner also claims to have taken immediate legal remedial
steps in order to protect its mark “SAKTHI” from infringers, etc.
Petitioner also claims that the aforesaid steps have ensured that the
mark “SAKTHI” has come to be perceived as one of the most
recognizable marks amongst the traders and consumers who identify
the said mark with the applicant alone and none else.
(f) Sometime in the year 2005, petitioner claims to have gained
knowledge about an application filed by respondent no.1 for
registration of the mark “SHAKTI” in Class 30 under no.701410.
Petitioner also initiated opposition proceedings against the said
application, however, the said opposition was dismissed on procedural
grounds, and the application of respondent no.1 was granted
registration in the year 2018.
(g) Petitioner also stated that, in a previous dispute both parties
entered into a settlement by undertaking not to prolificate by filing
fresh applications for the mark “SAKTHI”/ “SHAKTI”. It is alleged
that respondent no.1 suppressed many of its pending applications with
an oblique motive to gain an unfair edge over the petitioner. Petitioner
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contends that the impugned mark is one such application which was
suppressed by respondent no.1 in the Settlement Agreement. Petitioner
also submitted that while deciding an opposition filed by respondent
no.1 against one of the petitioner’s marks i.e. “SAKTHI TOOR
DHALL” under application no.1006557 in Class 30, the Deputy
Registrar had held that respondent no.1 has not been able to prove its
claim of the use of the mark “SHAKTI BHOG”, and proceeded to
allow the petitioner’s application vide order dated 26.06.2009.
(h) Predicated on the above, petitioner alleged that respondent no.1
does not have any bona fide intention to use the mark and the present
impugned registration has been obtained only as a paper registration
with malafide intention to hijack the word “SHAKTI”, and dilute the
reputation of the petitioner’s well-reputed and celebrated trademark
“SAKTHI”.
(i) Alleging violation of Sections 9, 11, 18 and 47, 57 of the Act, the
present petition seeking removal of the impugned mark “SHAKTI”
from the Register of Trade Marks, has been filed.
CONTENTIONS ON BEHALF OF THE PETITIONER:-
3. Mr. Kumar Sudeep, learned counsel for the petitioner would submit
that the petitioner is an established manufacturer and seller of food products
including spices and masala powders, pickles, edible oils, flour, and papad. It
is stated that the said products are manufactured and sold under the trademark
“SAKTHI”, and its variants exclusively and extensively since the year 1977.
Petitioner claims that the marks are registered in several classes including 65
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registrations in Class 30 alone, and the oldest of such registrations is of the
year 1979 with a user detail of the year 1977. Petitioner also claims to have
numerous copyright registrations and foreign registrations for its marks.
4. Learned counsel submitted that the impugned mark “SHAKTI” is
registered under Registration No.701410 in Class 30 in favour of respondent
no.1 under the certificated dated 22.05.2018. Learned counsel submitted that
the respondent no.1 was arrested in some cases, and subsequently enlarged on
bail, and his company M/s Shakti Bhog Foods Limited is under liquidation.
5. It is stated that the petitioner had filed an opposition against the
impugned mark before the Trade Marks Registry, however, the said
opposition was dismissed, according to the learned counsel, merely on
procedural grounds. Subsequently, the petitioner filed the present rectification
before the Intellectual Property Appellate Board (hereafter referred to as
“IPAB” ), which eventually came to be transferred to this Court.
6. Learned counsel for the petitioner addressed arguments topic-wise
which are noted hereunder:-
I. The non-use of impugned mark:-
7. Learned counsel for the petitioner contended that though the respondent
no.1 has claimed user of the mark “SHAKTI”, however, the same is
unfounded as no documentary evidence corroborating the said contention has
been placed on record by respondent no.1. It was contended that there is no
bona fide use of the impugned mark either by respondent no.1 or by anyone
authorized by them apart from the fact that respondent no.1 does not have any
bona fide intention to use the said impugned mark in respect of class of goods
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for which it was registered. In other words, it is contended that the said
registration has been obtained only as a paper registration with an intention to
hijack the word “SHAKTI”, which is a phonetic equivalent of the petitioner’s
prior adopted and registered trademark “SAKTHI”. On the aforesaid basis, it
was contended that the said impugned mark is liable to be expunged from the
Register of Trade Marks under Section 47(1)(a) of the Act.
8. Learned counsel also contended that respondent no.1 applied for the
registration of the impugned mark without any use in respect of the goods
described under Class 30. Learned counsel stated that there is nothing on
record to demonstrate that the respondent no.1 has used the mark subsequent
to the date of application i.e.12.03.1996 for goods under Class 30 for a
continuous period of five years. He would also submit that till three months
prior to the present rectification petition, the respondent no.1 did not use the
impugned mark for the goods under Class 30 for a continuous period of five
years, and therefore, the said mark is liable to be removed from the Register
of Trade Marks under the provisions of Section 47(1)(b) of the Act.
9. Learned counsel also contended that the use of the mark “SHAKTI” by
respondent no.1 is liable to be removed for the reason that it is capable of
causing confusion among the trade circles and the consuming public. He
contended that the impugned mark has been registered with the sole intention
of hijacking the word “SHAKTI”, and simultaneously diluting the goodwill
and reputation garnered by the petitioner in respect of the mark “SAKHTI”.
He reiterated that the said registration is a mere paper registration with no
intention to put it to use. Thus, according to him, the impugned mark wrongly
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remains in the Register without any sufficient cause, and is thus liable to be
removed as per Section 57(2) of the Act.
10. Additionally, learned counsel submitted that the corresponding
paragraphs in the reply to the grounds raised in the petition (Form-1) are
silent regarding any use of the impugned mark. In fact, he would contend that
there is not a single assertion that the impugned mark “SHAKTI” has ever
been used at all. Therefore, not only for the lack of evidence, but also for non-
traverse of the contentions and grounds raised by the petitioner by the
respondent no.1 or even respondent no.3, the impugned mark is liable to be
removed under Section 47 of the Act.
II. Registration of the mark is violative of Section 9 and 11 of the Act:-
11. Learned counsel contended that the mark of the petitioner “SAKTHI”
has been used by the petitioner since the year 1977, and was registered in the
year 1979. He would contend that the said mark is being used continuously
and uninterruptedly by the petitioner since then till date. He would also
contend that in the last almost 50 years of the existence of the trademark of
the petitioner, it has gathered substantial goodwill and reputation for the high
quality products manufactured and sold by the petitioner under the said mark.
Thus, according to him, the mark of the respondent no.1 being structurally,
phonetically and conceptually being identical or similar, is in clear violation
of Sections 9(1)(a), 9(2)(a), 11(1), 11(2), 11(3) and 11(10) of the Act.
Therefore, the registration of the impugned mark being contrary to the law
deserves to be struck off from the Register of Trade Marks.
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12. Learned counsel contended that the respondent no.1 cannot claim any
right as owner of the impugned mark under Section 18 of the Act as in the
past, in the opposition proceedings initiated by the respondent no.1 against the
petitioner’s application under no.1006557 for the mark “SAKTHI TOOR
DHALL” under Class 30, the Registrar/respondent no.2 had categorically
held vide order dated 26.06.2009 that the respondent no.1 has not been able to
prove use of its mark “SHAKTI BHOG”, and accordingly, rejected the
opposition proceedings. As against this, learned counsel would contend that
the respondent no.2 has now committed an error by registering the mark
“SHAKTI” in favour of respondent no.1. Based on the aforesaid contention,
learned counsel would contend that the impugned mark is liable to be
removed from the Register of Trade Marks being violative of Sections 18 and
57 of the Act.
III. Respondent no.3 has no locus standi:-
13. Learned counsel would contend that respondent no.3 has no locus,
however, was arrayed as a party vide order dated 15.01.2025. He would
contend that respondent no.3 has predicated its impleadment in the present
petition by virtue of an alleged Assignment Deed dated 30.12.2017, however
the said Assignment Deed purportedly grants alleged assignment only of the
mark “SHAKTI BHOG” to respondent no.3, and is conspicuous by the
absence assignment of the mark “SHAKTI”, which is the subject matter of the
present petition. He would contend that a party may be entitled to use of a
mark provided the same has been conferred by virtue of an assignment in
writing as provided by Section 2(1)(b) of the Act. Thus, having regard to the
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fact that there is no mention, even remotely, to the mark “SHAKTI” being
assigned to respondent no.3, respondent no.3 has no jurisdiction or authority
or locus to oppose the present petition. Learned counsel reiterates that the
purported registration certificate for the mark “SHAKTI” is in the name of
respondent no.1, which has not been assigned to respondent no.3. Therefore,
the respondent no.3 would have no locus to oppose the petition of the
petitioner in respect of the mark “SHAKTI”.
IV. Other issues:-
14. Learned counsel further contended that the alleged claim of use of
impugned mark “SHAKTI” is neither honest nor concurrent nor are there any
special circumstances in favour of respondent no.3 to claim protection under
Section 12 of the Act. He would contend that demonstrably the respondent
no.3 has failed to place on record any evidence to establish use of the said
mark “SHAKTI” in the last atleast 21 years. Thus, in the absence whereof, the
protection under Section 12 of the Act cannot get extended to respondent
no.3. He further contended that there is a long history of litigation between
respondent no.1 and the petitioner. In fact, it is stated that the petitioner had
filed an opposition to the application under no.701410 of the impugned mark
“SHAKTI” before the Trade Marks Registry, and thereafter, the present
rectification petition has also been filed. According to learned counsel, the
aforesaid facts would establish that the petitioner had never acquiesced to the
use of impugned mark “SHAKTI” by any party. Accordingly, he contended
that the impugned mark is not even protected under the provisions of Section
33 of the Act.
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15. So far as, the trademark certificate bearing registration no.472286
placed on record by the respondent no.3 to claim prior adoption of the mark
“SHAKTI BHOG ATTA” by the alleged predecessor in 1975 is concerned,
learned counsel contended that the said document is ex facie suspect and
unreliable.
16. He would contend that while the computer printout at page 5 indicates
the date of application as 01.04.1975 whereas, the copy of the actual
certificate for the said mark on page 7 shows the date of application to be
15.05.1987. Thus, according to learned counsel, the said documents being
contrary to each other cannot be permitted to be relied upon by respondent
no.3 to predate the use of the mark “SHAKTI BHOG ATTA”.
Notwithstanding the said submission, learned counsel would contend that in
any case the alleged registration pertains to the mark “SHAKTI BHOG
ATTA”, and not the impugned mark “SHAKTI”, which are two different and
separate marks, and cannot be considered as depicting one registered mark as
being sought to be conflated by the respondent no.3.
17. Predicated on the above, learned counsel would pray that the impugned
mark “SHAKTI” be expunged/removed from the Register of Trade Marks
forthwith.
CONTENTIONS ON BEHALF OF THE RESPONDENT NO.3:-
18. Appearing for the respondent no.3 Mr. Grover, learned counsel gave a
brief background of the case of the respondents.
19. He submitted that on 01.04.1975 the trademark “SHAKTI BHOG” was
adopted by Kumar Dal Mills ( “KDM” ) in proof whereof the respondent
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placed on record certain old newspaper advertisements with invoices as also
the status page of the mark “SHAKTI BHOG” under no. 391844 in Class 30
submitted on 16.06.1982. It is stated that, in the year 1990, Mr. Kewal
Krishna Kumar/respondent no.1 took over as proprietor of KDM upon
retirement of other partners of KDM. In 1991, respondent no.1 incorporated
respondent no.3 company as a group concern of KDM. While so, respondent
no.1 applied for registration of the impugned mark “SHAKTI” in Class 30 on
12.03.1996 under no.701410. Respondent no.3 claims that respondent no.1
had executed a formal license dated 01.10.1996 in favour of respondent no.3
for the use of mark “SHAKTI BHOG” for a period of ten (10) years. It is
claimed that the said license was extended for a period of thirty (30) years by
virtue of the License Deed dated 03.04.2006. Subsequently, by the
Assignment Deed dated 28.02.2007, respondent no.1 assigned registrations of
the mark “SHAKTI BHOG”, and other variants in Classes 29, 30, 31, and 32
in favour of his own company M/s Shakti Bhog Foods Limited ( “SBFL” ).
20. It is stated that vide the Assignment Deed dated 30.12.2017, the
company SBFL assigned all its rights acquired under the Assignment Deed
dated 28.02.2007 from respondent no.1, in favour of respondent no.3 for a
total consideration of Rs.14.10 Crores. It is stated that against the total
consideration of Rs.14.10 Crores, an amount of Rs.13.5 Crores has already
been paid, and Rs.50 lakhs were retained for want of original foreign
registration certificates. As per Clause 2.3 of the Assignment Deed dated
30.12.2017, in case such foreign certificates are not handed over, no further
amount was liable to be paid. It is claimed that pending applications were also
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assigned to respondent no.3 in terms of Clause 10 of the said Assignment
Deed.
21. Predicated on the above, Mr. Grover, learned counsel submitted that
consequent upon execution of the Assignment Deed dated 30.12.2017,
respondent no.3 executed fresh contracts/agreement with third-party contract
manufacturers for manufacturing of the goods under the mark “SHAKTI
BHOG”. He submitted that the invoices, etc. along with copies of invoices of
advertisements initiated by respondent no.3 are placed on record on behalf of
respondent no.3 as corroborative evidence to show use of the mark “SHAKTI
BHOG” as its proprietor.
22. At the outset, Mr. Grover, learned counsel for respondent no.3
contended that the present petition under Section 47(1)(a) of the Act is not
maintainable in view of the fact that respondent no.3 through its predecessor
has all along been using the mark “SHAKTI” till date. He contended that in
order to appreciate the manner in which respondent no.3 contends use of the
mark “SHAKTI” at least from the year 1996 is predicated on the
interpretation of Sections 15(1), 16, 17 and 55 of the Act.
23. Referring to Section 15 of the Act, Mr. Grover, learned counsel would
contend that under the provisions of the said section, the proprietor of the
mark is entitled to exclusive use of any part thereof separately for which
purpose the said proprietor would be entitled to apply to register the whole
and the part as separate trademarks. He next referred to Section 17 of the Act
to contend that the said provisions provide that when a trademark consists of
several matters, the registration thereof confers an exclusive right upon the
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proprietor the use of the mark taken as a whole. Emphasizing on sub-section
(2) of Section 17 of the Act, learned counsel further contended that the same
is a non-obstante clause, which provides that if the said mark contains any
matter which is common to the trade or is of a non-distinctive character, the
registration of the whole shall not confer any exclusive right in the matter
forming only that part of the whole.
24. Applying the aforesaid interpretations, learned counsel would contend
that if the said interpretation is applied to the mark of respondent no.1 or
respondent no.3 i.e. “SHAKTI BHOG”, the word “BHOG” can be stated to be
common to the trade, and at the same time, is also of a non-distinctive
character, thus, not conferring any exclusive right of respondent no.3 over the
word “BHOG”. In other words, his contention was that the mark “SHAKTI
BHOG”, viewed from the prism of the aforesaid interpretation, the exclusivity
of respondent no.1 or respondent no.3 in the whole mark would be purely on
the mark “SHAKTI”. In other words, learned counsel would contend that on a
holistic and harmonious interpretation of Section 15 read with Section 17 of
the Act, the registration of the mark “SHAKTI BHOG” of the year 1982 may
be considered as registration of the mark “SHAKTI” alone. If so considered,
the earliest use of the mark “SHAKTI”, as per the aforesaid interpretation
would date back to 28.10.1995. Thus, the question of non-use under Section
47(1)(a) falls flat, and the petition ought to be dismissed.
25. Learned counsel next predicated his arguments on the provisions of
Section 55 of the Act, particularly sub-section (2) thereof. He would contend
that as per Section 55(2), the use of the whole of a registered trademark shall
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be deemed to be also use of any trademark being part thereof, and registered
in accordance with sub-section (1) of Section 15 of the Act in the name of the
same proprietor. In other words, learned counsel would contend that the use
of the mark “SHAKTI BHOG” from the year 1975 with user documents like
invoices corroborating such use since 28.10.1995, ought to be deemed to be
the usage of the mark “SHAKTI” since the word “BHOG” is common to
trade or of non-distinctive character. He would contend that, looked at it
either which way, in that, whether the interpretation urged in terms of Section
15 read with Section 17 or the same read in conjunction with interpretation to
Section 55(2) of the Act, it is beyond cavil that respondent no.3 by itself or
through its predecessor respondent no.1 has used the mark “SHAKTI” as a
trademark for manufacture and sale of goods under Class 30. Therefore, the
contention of the petitioner that there has been no use nor is there any
document on record to establish use of the mark “SHAKTI” by respondent
no.1 or respondent no.3 is absolutely unfounded, and ought to be rejected. He
would contend that the petition being bereft of any merit in respect of non-use
of the mark “SHAKTI” under Section 47(1)(a) or 47(1)(b) of the Act, ought
to be dismissed with exemplary costs.
26. Learned counsel contended that the objection under Section 47(1)(b) is
misconceived for the reason that the mark was registered on 22.05.2018, and
the petition was filed on 08.04.2019, thus, a period of five years did not even
elapse. Reliance in that regard was placed on Rong Thai International Group
Co. Ltd. v. Ena Footwear (P) Ltd., 2024 SCC OnLine Del 66 .
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27. Mr. Grover, learned counsel would contend that respondent no.1 was a
prior adopter of the mark “SHAKTI BHOG”, and thus, has superior rights in
the said mark, whereas, the petitioner claims to have adopted the mark
“SAKTHI” in the year 1977, which user has also not been proved on record.
He would contend that in any case respondent no.1 was an honest and
concurrent user of the mark, and in support thereof reliance is placed on
London Rubber Co. Ltd. v. Durex Products Incorporated, 1963 SCC
OnLine SC 223.
28. Learned counsel would contend that the objections raised under
Sections 9, 11(1) and 11(3) of the Act are misconceived as the rival marks are
used for different products, which use is not likely to cause confusion and
deception. Reliance is placed on Nandhini Deluxe versus Karnataka
Cooperative Milk Producers Federation Ltd.- 2018 9 SCC 183. He further
contended that the petitioner has utterly failed in establishing or even
demonstrating even a single instance of confusion amongst the mark or any
dilution at all.
29. Learned counsel also contended that the goodwill of the petitioner has
to be established, proved and reckoned on the date when respondent no.3
adopted the mark. He would submit that none of the invoices filed on record
by the petitioner establish that the mark “SAKTHI” was in use at least till the
year 2010. All the earlier invoices from the year 1994 of the petitioner only
displayed its trade name, and not the mark. Even the invoice dated 08.01.2010
for the first time displayed the mark “SAKTHI” only as a mark, and not
against any product mentioned therein. Thus, there is no proof on record to
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demonstrate any use of the mark “SAKTHI” by the petitioner. To the
contrary, respondent no.3 through respondent no.1 has demonstrated the use
of the mark “SHAKTI BHOG” since the year 1995 at least.
30. Predicated on the above, learned counsel contends that the adoption of
the mark “SHAKTI” being honest, concurrent and bonafide , the registration
under no.701410 in Class 30 is entitled to remain on the Register of Trade
Marks. He prays that the present petition be dismissed.
REJOINDER OF THE PETITIONER:-
31. To the argument of respondent no.3 based on the interpretation to the
provisions of Section 15 read with Section 17 in conjunction with Section
55(2) of the Act, learned counsel contended in rejoinder that the impugned
mark “SHAKTI” does not independently satisfy the requirements of the
trademark registrations, and thus, does not fall within the provisions of
Section 15(2) of the Act, and the interpretation sought to be projected is
completely erroneous and misreading of the provisions of the aforesaid
sections. He would contend that the mark of the petitioner i.e. “SAKTHI” has
been present on the Register of Trade Marks for more than 45 years, and as
such, if the said interpretation is agreed to, it would be contrary to the validity
of the registration of petitioner’s mark under Section 18 of the Act.
Additionally, learned counsel reiterated that the mark “SHAKTI” per se has
never been used either by the respondent no.1 or respondent no.3 till date, and
thus, the covering of the said lacunae by giving convoluted interpretation to
the sections of the Act, cannot by itself, fulfill the actual lack of use of the
mark “SHAKTI”. Thus, the interpretation is not sustainable.
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ANALYSIS AND CONCLUSION:-
32. This Court has heard the arguments of Mr. Kumar Sudeep, learned
counsel for the petitioner, and Mr. Grover, learned counsel for the respondent
no.3, and perused the record.
33. So far as the arguments of Mr. Grover in respect of the interpretation of
Section 15 read with Section 17 in conjunction with Section 55(2) is
concerned, this Court would deal with the same in a while.
34. At the outset, it needs to be noted that the petitioner obtained its
registration on 05.01.1979 with a user detail of 02.03.1977 for the mark
“SAKTHI” for products under Class 30. Though the petitioner claimed usage
of the said mark since the year 1977, however, the first invoice is dated
07.04.1994 indicating the use of the trade name “Sakthi Trading Company”.
Same is the situation with respect to the invoice dated 20.04.1996. It may be
pertinent to note that the respondent no.1 had applied for the registration of
the mark “SHAKTI” on 12.03.1996. What may be the effect of this, shall be
considered and adverted to, in the later paragraphs. It is for the first time in
the invoice dated 08.01.2010 that the trademark of the petitioner “SAKTHI”
was displayed. This is reflected in the subsequent invoices too. Thus, on the
record of this Court, the first invoice demonstrating the use of the mark
“SAKTHI” by the petitioner is the invoice dated 08.01.2010.
35. As against this, the respondent no.1 had applied for registration of its
mark “SHAKTI BHOG” (word mark) on 16.06.1982 with a user detail of
01.04.1975, which was registered on 28.04.1989 for products under Class 30.
On record, the respondent no.1 and respondent no.3 have placed multiple
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registrations of the mark “SHAKTI BHOG”, and formative marks with
variants in the later years. There is no controversy in respect to the same.
However, so far as proof of use of the mark is concerned, respondent also has
placed on record invoices, the first dated 28.10.1995 and upto the year 2022.
Respondent no.3 has also placed on record invoices pertaining to the
promotional expenses, ostensibly for the advertisement of its products sold
under the mark “SHAKTI BHOG ATTA”. Significantly, respondent no.1 or
for that matter respondent no.3 has not placed on record even a single invoice
or any proof of use of the mark “SHAKTI”, though, it is claimed that the
mark was applied for registration on 12.03.1996. In the last many years till the
present rectification was filed, there is no such proof adduced by respondent
no.1 or respondent no.3. In fact, neither respondent no.1 nor respondent no.3
has produced any invoice even after 22.05.2018 when the mark “SHAKTI”
was finally registered.
36. In contradistinction thereto, the petitioner has placed on record all its
registrations, Indian, and of other foreign jurisdictions for the mark
“SAKTHI” for various products in Class 30. Although the mark “SAKTHI”
was originally registered as a device mark on 05.01.1979 with user detail of
02.03.1977, the petitioner has placed on record the word mark registrations
too. This clearly contradicts the argument of the respondent no.3 that the
petitioner only has a device mark registration. This is clear from the table
below:
S.
no.
Trademark no. Word mark Pg. no. in
User date in
petition
TM
1. 851811 SAKTHI HONEY 65 —
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2. 851813 SAKTHI DHALL POWDER 69 01.04.1985
3. 851815 SAKTHI BISCUITS 73 —
4. 851817 SAKTHI BREAD 75 —
5. 851820 SAKTHI SWEETS &
CONFECTIONARY
79 —
6. 851821 SAKTHI SAVOURIES 81 —
7. 851824 SAKTHI RAVA DOSAI
MIX
85 31.12.1977
8. 851826 SAKTHI BADAM MIX 89 —
9. 851825 SAKTHI RAGI MALT 87 —
10. 851827 SAKTHI VATHAL &
VADAMS
91 —
11. 851828 SAKTHI ASAFOETIDA 93 —
12. 851829 SAKTHI RAGI VADAI MIX 95 31.12.1977
13. 851830 SAKTHI MURUKKU MIX 97 31.12.1997
14. 851832 SAKTHI PAYASAM MIX 99 —
15. 878077 SAKTHI VERMICELLI 101 —
16. 878078 SAKTHI CORN FLAKES 103 —
17. 878082 SAKTHI CHUTNEY 109 —
18. 878083 SAKTHI COFFEE 111 Proposed to
be used
19. 878084 SAKTHI MENTHI 113 —
20. 878085 SAKTHI PEPPER 115 —
21. 878086 SAKTHI CHILLI 117 —
22. 878087 SAKTHI MUSTARD 119 —
23. 878088 SAKTHI CUMIN 121 —
24. 878094 SAKTHI SOUFF 127 —
25. 878095 SAKTHI POPPY SEED 129 —
26. 878096 SAKTHI CONDIMENTS 131 —
27. 878097 SAKTHI CARDAMOM 133 —
28. 878099 SAKTHI TURMERIC 137 —
29. 878103 SAKTHI (FOR EXPORTS) 141 —
30. 992872 SAKTHI DIET 160 01.07.2000
31. 992874 SAKTHI ACTIVE 163 01.07.2000
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37. Even if this Court eschews the invoices brought by the petitioner prior
to the invoice dated 08.01.2010 on the ground that they referred only to the
trade name, and not to the mark “SAKTHI” specifically, even then there is
tangible proof of use of the mark “SAKTHI” by the petitioner at least since
2010. Whereas, as observed above, there is no such proof or evidence of use
of the mark “SHAKTI” by either respondent no.1 or respondent no.3 on
record. Thus, on facts, it is clear that the petitioner is not only the prior
registrant of the mark “SAKTHI”, but also the prior user.
38. A relevant consideration at this stage would be the opposition
proceedings initiated by the respondent no.1 against application for
registration of the mark “SAKTHI TOOR DHALL” under no.1006557 dated
30.04.2001 in relation to Class 30. It appears that the Registrar had by the
order dated 26.06.2009, rejected the opposition notice of respondent no.1, and
allowed application of the petitioner which proceeded for registration. It
appears that the respondent no.1 did not challenge the said registration
anytime subsequently. The reasoning may be relevant to appreciate the
controversy in the present case. The relevant paragraphs of the order dated
26.06.2009 is reproduced hereunder:
“I have considered the submissions of both the parties and gone
through the records. The Applicants have shown their user
pertaining to trade mark SAKTHI in respect of TOOR DHALL since
19.4.1989 by producing various evidences filed along with affidavit
under Rule 51 in support of his contentions. The applicants have
furnished sales figures from the year 1995-96 to 2005-2006. On the
other hand, the opponents have furnished sales turnover for the year
1975-76 to 1993-94 in the name of M/s Kumar Dhal Mill and 1996-
97 to 2000-01 in the name of M/s Shaktibhog Foods Ltd. and M/s
Kumar Food Industries Limited. The Opponents have filed invoice
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copies from the year 1988 to 2003 in respect of their trade mark
SHAKTIBHOG according to the evidence filed by them and these
are also pertaining to goods ATTA only. The user claimed by the
opponents in these proceedings is not established properly. I also go
with the applicant's have stated in their affidavit M/s SHAKTI
BHOG FOODS LIMITED and M/s KUMAR FOOD INDUSTRIES
are Licensee of their company and now they filed a request on Form
TM-16 that the trade mark SHAKH BHOG has been assigned to M/s
SHAKHBHOG FOODS LIMITED which are quite contradictory. All
these circumstances shall lead to a conclusion that the opponents
have come with unclean hands before this Tribunal. The evidence
filed by the Applicant itself substantiate their claim of the use in
relation to the trade mark SAKTHI and they are the proprietors of
the trade mark SAKTHI under Section 18 of the Act. It is very clear
from the evidence filed by the applicants and the arguments adduced
by the applicant's counsel that they are the proprietors of the trade
mark SAKTHI since the year 1977 continuously and extensively
without any interruption from any source. Therefore, the Applicant
can claim the proprietary rights in the impugned mark 'SAKTHI'
and the present opposition is filed just to delay the proceedings of
registration of the impugned mark without any sustainable ground
and the same is devoid of any merit.
On consideration of overall facts and circumstances of the
case, this Tribunal is of the view that the Opponents have failed to
substantiate any of their objections to the registration of the
impugned mark as raised in the notice of opposition in terms of
Sections 9, 11, 12 & 18 of the Act and hence none of their objections
can be sustained and is hereby ordered accordingly. Also there is no
justifiable reason or circumstance to exercise my discretion adverse
to the Applicants under Section 18(4) of the Act as prayed for by the
Opponents.
In view of the foregoing, the application No. 1006557 In
Class-30 is allowed with costs and consequently, the opposition
No.MAS-191672 is dismissed. The applicants are entitled to a cost
of Rs.3500/- (Three Thousand Five Hundred only) of these
proceedings.
Sealed and signed at Chennai on 26.6.2009.”
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39. It is pertinent to note that respondent no.1 did not further challenge the
order dated 26.06.2009, and thus, this circumstance would surely weigh
against respondent no.3. For that matter, even respondent no.3 never assailed
the said order despite claiming to have been assigned the mark “SHAKTI
BHOG” by respondent no.1 vide the Assignment Deed dated 30.12.2017.
40. In the meanwhile, the respondent no.1 had applied for registration of
the mark “SHAKTI” under no.701410 dated 12.03.1996 in relation to
products under Class 30 which is the impugned registration. The petitioner
appears to have objected to the said application by initiating opposition
proceedings, however, on account of not having filed evidence, the
proceedings culminated into registration of the impugned mark. The petitioner
did not accept the same, and assailed such registration by filing the Original
Application No.39/2019/TM/DEL before the IPAB. After the abolition of the
IPAB, the said application was transferred to this Court, and re-numbered as
the present petition. Thus, it is evident that the petitioner on its part continued
to oppose the registration of the mark “SHAKTI” from the time it gained
knowledge till date.
41. Having regard to the aforesaid observations, factual analysis and
bearing in mind that despite having applied for the mark “SHAKTI” on
12.03.1996, and it being finally registered on 22.05.2018, it is astounding to
note that there is not even a single scrap of proof, documentary or otherwise,
placed on record by either respondent no.1 or respondent no.3 to establish,
demonstrate or corroborate the contention that the said mark has been used in
the past. Equally, there is nothing placed on record to establish use of the
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impugned mark by either respondent no.1 or respondent no.3 in three months
before the application as per Section 47(1)(a) of the Act. Apart from the
impugned registration of the mark “SHAKTI”, the respondent no.1 and
respondent no.3 have not placed any tangible proof of its use, ever.
42. Equally, on the basis of the same observations and analysis, it can
safely be inferred that the impugned mark was registered without any bona
fide intention on the part of respondent no.1 or respondent no.3 to use the
mark in relation to the goods or services for which it was registered. The onus
to demonstrate or establish bona fide intention was upon respondent no.1 and
respondent no.3, jointly, which they have failed to discharge. The initial onus
to prima facie demonstrate non-use or lack of intention to use has been
discharged by the petitioner by asserting the same, and also evidencing its
opposition to the registration. While in one case, the petitioner succeeded in
the opposition proceedings initiated by the respondent no.1, culminating in
the order dated 26.06.2009 of the Registrar allowing the registration of the
mark “SAKHTI”, in the other, the petitioner did not complete the
requirements in its opposition proceedings leading to the registration of the
impugned mark. However, consequent to the filing of the present rectification
petition, it was the requirement of respondent no.1 and respondent no.3 to
evidence, by proper and tangible documentary proof, not only the bona fide
intention to use, but simultaneously establish such use by filing invoices, etc.,
to show use of the mark “SHAKTI” in respect of products manufactured in
relation to Class 30. The facts and the material on record placed by
respondent no.1 and respondent no.3 do not instil any confidence in respect of
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the requirements under Section 47(1)(a) of the Act, and this Court concludes
that respondent no.1 and respondent no.3 have failed to discharge the said
onus.
43. That said, this Court is of the opinion that no case under the provisions
of Section 47(1)(b) of the Act has at all been made out. Undeniably, the
impugned mark was registered on 22.05.2018, and was entered into the
Register of Trade Marks consequent thereto. Whereas, the present petition
was filed by the petitioner on 08.04.2019, which falls foul of the requirement
under Section 47(1)(b) of the Act. Thus, the petition fails to that extent.
Though, it is a matter which can be noticed that respondent no.3 while
claiming rights over the application seeking registration of the impugned
mark, in terms of Clause 10 of the Assignment Deed dated 30.12.2017
executed in its favour by SBFL, has not placed any document to evidence use
of the mark “SHAKTI”, even subsequent to the registration of the mark in the
year 2018 or the filing of the present petition.
44. At this stage, it may be relevant to consider the arguments of
respondent no.3 based on protection conferred by provisions of Section 12 of
the Act for “honest concurrent use”. As observed above, nothing has been
placed on record by respondent no.1 or respondent no.3 to evidence and
corroborate use of the mark from 12.03.1996, or either before or even at
anytime subsequent thereto, and therefore, in the considered opinion of this
Court, the question of “honest concurrent use” does not arise in the facts of
the present case. It needs emphasis that for an entity or individual to seek
protection under the provisions of Section 12 of the Act, it is imperative to
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demonstrate, as a matter of fact, the actual use of the mark “concurrently” and
“honestly” in respect of the goods or services in relation to the Class under
which registration or protection is sought. Mere assertion, without any
tangible evidence, shall not fulfill the requirements of Section 12 of the Act.
Thus, even on this score, respondent no.3 is found wanting.
45. Another argument was addressed by learned counsel for the petitioner
that respondent no.3 was not assigned the mark “SHAKTI” by respondent
no.1 in the Assignment Deed dated 30.12.2017 and thus, respondent no.3
lacked locus to oppose the present petition. On the other hand, learned
counsel for the respondent no.3 had categorically relied upon Clause 10 of the
said Assignment Deed which provided that the assignee was further entitled
to bring itself on record with respect to any pending trademark applications
for the mark “SHAKTI BHOG” or its variants, in case it so desires. On the
strength of the said clause, respondent no.3 claims locus to oppose the
petition. He also relied upon the judgement of this Court in Sun
Pharmaceuticals Industries Ltd. v. Cipla Ltd., 2008 SCC OnLine Del 1135
for the said proposition.
46. This Court has also considered the terms of Clause 10 of the
Assignment Deed dated 30.12.2017. The said clause unequivocally permits
and grants permission to respondent no.3-the assignee to bring itself on record
in respect of any pending trademark applications for the mark “SHAKTI
BHOG” or its variants. It is relevant to note that the words “ its variants ” must
be construed widely to include the mark “SHAKTI” which was applied for on
12.03.1996, and was still pending consideration by the Trade Marks Registry,
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and the registration was finally granted on 22.05.2018. It may be noted that
the Assignment Deed was executed on 30.12.2017 on which date the
application for registration of the mark “SHAKTI” was still pending. Thus, it
cannot be said that respondent no.3 has no locus to oppose the present petition
seeking removal of the mark “SHAKTI” from the Register of Trade Marks.
47. That said, on law, learned counsel for respondent no.3 had tendered a
very interesting and captivating argument on the interpretation of Section 15
read with Section 17 in conjunction with Section 55(2) of the Act. Learned
counsel would have this Court believe that the usage of the mark “SHAKTI
BHOG” must be interpreted to mean the usage of the prominent mark
“SHAKTI” as the word “BHOG” is, either common to trade or non-
distinctive, and since there is no exclusivity available with the respondent
no.3 over the word “BHOG”, the use of the composite word “SHAKTI
BHOG” ought to be deemed to be use of the mark “SHAKTI”. Viewed from
that prism, the use of the mark “SHAKTI” ought to be deemed from the year
1982 when the mark “SHAKTI BHOG” was registered with user detail from
01.04.1975 or at the least from 28.10.1995, the date of the earliest invoice
placed on record by respondent no.3 in proof of sale of goods under the mark
“SHAKTI BHOG” for the products manufactured in relation to Class 30.
48. Although, the aforesaid argument is not only attractive but also
captivating and plausible. However, in the opinion of this Court, the said
interpretation, even if accepted, cannot be applied to the facts of this case.
This is for the reasons that (i) an identical mark “SAKTHI” for Class 30
goods was applied for by the petitioner on 30.04.2001 under no.1006557 and
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allowed by the Registrar, and that too, after the consideration of the objections
and opposition proceedings initiated by the respondent no.1 and rejected by
order dated 26.06.2009 which was never challenged, and (ii) neither
respondent no.1 nor respondent no.3 have been able to prove or establish by
any tangible documentary proof the independent use of the mark “SHAKTI”
either before applying for registration or any time subsequent thereto or even
after registration of the impugned mark on 22.05.2018, and thus, the aid of
interpretation cannot be employed in such a manner as to defeat the rights
which may have accrued to the opposite party.
49. Another way of examining the said issue would be to understand that
though such interpretation may be plausible, yet, it cannot be applied dehors
the facts arising in a particular case. Having failed to produce any evidence of
the use of the mark “SHAKTI” from 12.03.1996, the date of application
seeking registration or 22.05.2018, when the mark was finally registered,
falling back upon an interpretation which would forward the case of
respondent no.3 and desiring the Court to render an opinion of deeming
fiction, would be an exercise in futility for the reason that the facts in this case
do not support the stand taken by the respondent no.3. Had respondent no.1 or
respondent no.3 demonstrated by tangible evidence the use of the mark
“SHAKTI”, possibly the Court would have been compelled to consider the
interpretation as put forward by learned counsel for the respondent no.3.
Having failed on facts, respondent no.3 cannot plead legal interpretation to
come to its aid.
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50. As such, though learned counsel for respondent no.3 placed a brilliant
and novel interpretation to Sections 15, 17 and 55 of the Act, this Court is not
ready to accept such interpretation, keeping in view the facts of the case.
Resultantly, the said argument is found to be unpersuasive.
51. This Court has also examined the rival marks i.e. the trademark
“SAKTHI” of the petitioner, and the impugned mark “SHAKTI” of
respondent no.1 and respondent no.3, and finds both the marks phonetically
and structurally identical to each other. In fact, the placement of the letter ‘H’
in the mark of the petitioner or the mark of respondent no.1 at different places
really does not make any difference since both marks are phonetically similar
and convey identical meaning i.e. “power”, “energy” or “ability”. It may also
be kept in mind that the parties are manufacturers of products falling within
Class 30. Thus, there is every likelihood of a general consumer with average
intelligence and imperfect recollection to get confused or deceived into
believing the goods of respondent no.1 and respondent no.3 as those of the
petitioner. Even otherwise, as held above, the petitioner has been able to
demonstrate, by placing tangible evidence on record, that it has been
consistently using its mark “SAKTHI” from the last many decades. While
respondent no.1 and respondent no.3 have not been able to demonstrate any
such usage of the mark “SHAKTI” in relation to the goods manufactured
under Class 30. Thus, the mark “SHAKTI” of respondent no.1 and respondent
no.3 cannot be permitted to continue to remain on the Register of Trade
Marks.
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52. Learned counsel for respondent no.3 had relied upon the judgement of
this Court in Rong Thai (supra) to contend that the petition is not
maintainable for the reason that while the impugned mark was registered on
22.05.2018, the present petition under Section 47(1)(b) of the Act was filed
on 08.04.2019, and thus, a period of five years had not elapsed. It may be
noted that in the aforesaid paragraphs, this Court has also concluded that a
case under Section 47(1)(b) is not made out, however, since this Court has
found that a case against respondent nos.1 & 3 under Section 47(1)(a) of the
Act has been made out, the petition otherwise would be maintainable. Thus,
the judgement of Rong Thai (supra) may not be applicable.
53. Learned counsel for respondent no.3 had also relied upon the
judgement of the Supreme Court in London Rubber Co. Ltd. (supra) in order
to support his contention that the impugned mark has been correctly
registered and rightly entered in the Register of Trade Marks on account of
“ honest and concurrent use” under the provisions of Section 12. This Court
has perused the judgement in London Rubber Co. Ltd. (supra) , and finds that
on facts, there is a clear distinction from those arising in the present case.
While in London Rubber Co. Ltd. (supra) the Registrar of Trade Marks as a
matter of fact, had found that the respondent therein i.e. Durex Products
Incorporated was using the mark “Durex” from the year 1928, while the
appellant had filed its application in the year 1946, and the mark “Durex” was
registered in the appellant’s name in the year 1951. It appears that
subsequently the respondent had applied for registration of the mark “Durex”.
The Registrar after having appreciated the evidence placed on record by the
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respondent of prior user of the mark “Durex” from the year 1928, registered
the said mark too in favour of the respondent on the basis of “ honest and
concurrent us e” of the mark in question in the said appeal. However, in the
present case, this Court has recorded a finding that there is no documentary
proof or tangible evidence demonstrating the use of the mark “SHAKTI”, by
either respondent no.1 or respondent no.3 from the date of application i.e.
12.03.1996 till the date of registration i.e. 22.05.2018 or even subsequently.
Thus, respondent no.3 has failed to prove “honest” and “concurrent” use.
Therefore, the ratio laid down in London Rubber Co. Ltd. (supra) would not
be applicable to the facts of the present case.
54. Learned counsel also relied upon the judgement of the Supreme Court
in Nandhini Deluxe (supra) to contend that the objections under Sections 9,
11(1) and 11(3) of the Act are misconceived as the rival marks are used for
different products and therefore, there is no likelihood of confusion or
deception. The ratio of the said judgement would not be applicable to the facts
of the present case in as much as it is undisputed that both parties manufacture
and sell goods falling within the same class i.e. class 30 and therefore, there is
every likelihood of confusion and deception.
55. In view of the finding that the provisions of Section 47(1)(a) have been
violated, this Court is of the considered opinion that the mark “SHAKTI”
registered on 22.05.2018 in the name of respondent no.1 under no.701410
dated 12.03.1996 ought to be expunged and removed from the Register of
Trade Marks. It also appears from the aforesaid observations that the entry
has been made without sufficient cause and wrongly remains on the Register
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of Trade Marks which would fall foul of the provisions of Section 57(2) of the
Act.
56. Accordingly, respondent no.2 is directed to cancel and remove the mark
“SHAKTI” registered on 22.05.2018 in the name of respondent no.1 under
no.701410 dated 12.03.1996 from the Register of Trade Marks. The said
exercise be carried out within four (4) weeks from the date of receipt of this
order.
57. Petition is disposed of alongwith pending applications, if any, with no
order as to costs.
TUSHAR RAO GEDELA
(JUDGE)
JUNE 24, 2026/ anj/rl
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