Kiehberg Gmbh And Anr vs Capital Airgun Manufacturers Private Limited And Anr

Court
Delhi High Court

$~O-11
* IN THE HIGH COURT OF DELHI AT NEW DELHI
# CNR No. DLHC010625262024
+ C.O. (COMM.IPD-TM) 187/2024 & I.A. 39793/2024

Date of Decision: 13.10.2026
IN THE MATTER OF:

KIEHBERG GMBH
INDUSTRIESTRAßE 4,
56581 KURTSCHEID, DEUTSCHLAND .....PETITIONER No. 1

SYNDICATE INNOVATIONS INTERNATIONAL LIMITED
G-365, PREET VIHAR
DELHI – 110092 .....PETITIONER No. 2


( Through: Mr. Prithvi Singh, Mr. Prithvi Gulati and Mr. Ritwik
Marwaha, Advs. )


versus

CAPITAL AIRGUN MANUFACTURERS
PRIVATE LIMITED
C- 188, NIARALA NAGAR NA,
LUCKNOW, UTTAR PRADESH – 226020 ...RESPONDENT NO. 1

THE REGISTRAR OF TRADE MARKS
TRADE MARKS REGISTRY
BOUDHIK SAMPADA BHAWAN,
PLOT NO. 32, SECTOR 14,
DWARKA, NEW DELHI-110078 …RESPONDENT NO. 2

( Through: Mr. Vinay Yadav, CGSC with Mr. R. V. Prabhat and Ms.
Kamna Behrani, Advs. for R-2. )


Signature Not Verified
Signed By:PRIYA
Signing Date:17.10.2026
13:22:27
Signature Not Verified
Signed
By:PURUSHAINDRA
KUMAR KAURAV

CORAM:
HON'BLE MR. JUSTICE PURUSHAINDRA KUMAR KAURAV
J U D G E M E N T

PURUSHAINDRA KUMAR KAURAV, J. (ORAL)

1. The instant cancellation petition has been filed under Section 57 of
the Trade Marks Act, 1999 (“the Act”) for the following reliefs:
“a. Remove the registration no. 6103985 for the mark „KIEHBERG‟ in
class 13, from the Register of Trade Marks;
b. Pass an order for payment of cost of the proceedings in favour of the
Petitioner and against Respondent No. 1;
c. Pass any such order/relief, as this Hon‟ble Court may deem fit and
proper, to safeguard the interest of the Petitioner.”
2. The prayer for cost is not pressed. Notice was issued on 19.09.2024
and status quo qua impugned registration was granted. Respondent No. 1
was served with the complete paperbook on 25.10.2024. It did not file a
reply, and vide order dated 06.02.2025 Joint Registrar closed its right to file
reply. Respondent No. 1 has not appeared before this Court at any stage.
3. Learnd counsel for respondent no.2 submits that the impugned
application was examined under Sections 9 and 11 of the Act. The
examination report dated 24.11.2023 found no conflicting mark on the
record of the Registry. The mark was advertised on 04.12.2023 and, as no
opposition was received, hence it was registered on 26.05.2024. The
petitioners filed their own applications for the word mark and device mark
KIEHBERG in Class 13, being Application Nos. 6490574 and 6490576,
only on 21.06.2024. Both have been objected to under Section 11(1) of the
Act because they are identical to the impugned mark. He also states that the
petitioners did not oppose the impugned application under Section 21 of the
Signature Not Verified
Signed By:PRIYA
Signing Date:17.10.2026
13:22:27
Signature Not Verified
Signed
By:PURUSHAINDRA
KUMAR KAURAV

Act.
4. Since respondent no.1, despite service, has neither filed a reply nor
defended the action, the averments in the petition remained unrebutted
against it. There are, therefore, no prospects of respondent no.1 successfully
contesting the instant case. However, the absence of a reply does not relieve
the Court of the duty to examine whether the petitioners’ case is made out
on the material placed on record. The Court cannot pass an order
mechanically for that reason alone, as held by the Supreme Court in Balraj
1 2
Taneja v. Sunil Madan and reiterated in Asma Lateef v. Shabbir Ahmad .
5. The facts of the case indicates that petitioner no.1 is a company
registered and existing in Germany, with its registered office at
Industriestraße 4, 56581 Kurtscheid, Deutschland, and was incorporated on
06.12.2011. Petitioner no.2, Syndicate Innovations International Limited,
was incorporated on 29.11.2011 under the Companies Act, 1956. The
petitioners claim to be among the largest distributors, stockists and dealers
of sports and outdoor shooting equipment. They claim to have
conceptualised the trademark KIEHBERG in 2011 and to have used it in
India since 21.03.2012.
6. The petitioners jointly promote KIEHBERG in India, and their
business is focused on shooting equipment and accessories sourced from
Germany and other European countries. The petitioners claim that, as a
result of their efforts, the trademark has become very popular among traders
and consumers, who associate it only with the petitioners and their products.
They claim that the trademark is well known and respected in India.

1
(1999) 8 SCC 396
2
(2024) 4 SCC 696
Signature Not Verified
Signed By:PRIYA
Signing Date:17.10.2026
13:22:27
Signature Not Verified
Signed
By:PURUSHAINDRA
KUMAR KAURAV

7. The petitioners contend that the trademark KIEHBERG is distinctive
and that they adopted it honestly. According to them, the origin of the mark
can be traced only to the petitioners, and the mark is prima facie distinctive
in relation to the goods and services sold under it. They further contend that
they adopted the mark honestly and have used it extensively, continuously,
openly and without interruption for over 12 years, which has resulted in
significant sales.
8. The petitioners contend that respondent no. 1, with mala fide intent,
filed Application No. 6103985 for the mark KIEHBERG in Class 13, for
firearms, ammunition and projectiles, explosives, fireworks, air guns. The
application was filed on 11.09.2023 on a “proposed to be used” basis and
proceeded to registration on 26.05.2024.
9. The petitioners made enquiries among members of the trade to find
out whether products of respondent no.1 bearing the mark KIEHBERG were
available in the market. They found that no such product had yet been
launched. During these enquiries, the petitioners found the website
www.camstarsports.com . The website gives the registered office address of
respondent no.1, and it shows that respondent no.1 sells air rifles, air pistols
and related accessories under other names. No product is offered on the
website under the mark KIEHBERG. In their rejoinder, the petitioners state
that respondent no. 1 has not used the impugned mark to date.
10. Learned counsel places reliance on the following decisions: S. Syed
3
Mohideen v. P. Sulochana Bai , N.R. Dongre and Ors. v. Whirlpool
4 5
Corporation and Anr. , Dorco Co. Ltd. v. Durga Enterprises and Anr. ,

3
(2016) 2 SCC 683
4
(1996) 5 SCC 714
Signature Not Verified
Signed By:PRIYA
Signing Date:17.10.2026
13:22:27
Signature Not Verified
Signed
By:PURUSHAINDRA
KUMAR KAURAV

6
Amit Sood v. Union of India and Ors , Blue Heaven Cosmetics Pvt. Ltd. v.
7
Deepak Arora and Ors. , Russell Corp Australia Pty Ltd. v. Ashok
8 9
Mahajan and Anr. and Crocs Inc. v. Registrar of Trademarks and Anr.
11. The Court has heard learned counsel for the petitioners and
respondent no.2, and perused the record.
12. The first question is whether the petitioners are “persons aggrieved”
within the meaning of Section 57(2) of the Act. In Hardie Trading Ltd. v.
10
Addisons Paint & Chemicals Ltd. , the Supreme Court held that in an
action for an entry wrongly made in the register, locus standi is to be judged
liberally. In the present case, respondent no.2 itself states in its reply that the
petitioners’ application nos. 6490574 and 6490576 have been objected to
under Section 11(1) of the Act because of the impugned registration. The
impugned registration is, therefore, a direct obstacle to the petitioners’ own
applications. The petitioners are clearly persons aggrieved.
13. Under Section 57(2) of the Act, this Court may expunge or vary an
entry where it was made in the register without sufficient cause, or where it
is wrongly remaining on the register. This Court, in Blue Heaven Cosmetics
(supra), set out the grounds on which an entry may be cancelled or varied
under Section 57. In Russell Corp Australia (supra), it was further held that
a mark is wrongly entered on the register if any ground for refusal of
registration under Section 9 or Section 11 of the Act is made out.
The material produced on record proves beyond doubt that the
14.

5
2023 SCC OnLine Del 1484
6
2024:DHC:3533
7
2022:DHC:1953
8
2023 SCC OnLine Del 4796
9
C.O. (COMM.IPD-TM) 779/2022; Dated: 08.04.2024
10
(2003) 11 SCC 92
Signature Not Verified
Signed By:PRIYA
Signing Date:17.10.2026
13:22:27
Signature Not Verified
Signed
By:PURUSHAINDRA
KUMAR KAURAV

petitioners were the prior users and lawful owners of the KIEHBERG
trademark in India and abroad. The petitioners have been continuously and
uninterruptedly using the trademark, and they are its rightful owners. The
documentary evidence shows that the petitioners are the prior users of the
mark and enjoy the goodwill and reputation attached to it.
15. In support of this, the petitioners have placed on record the certificate
of incorporation of petitioner no.1 and the master data of petitioner no.2.
They have also filed the WHOIS record of the domain name kiehberg.in,
which was registered on 15.12.2012, and extracts from their social media
accounts, the earliest of which dates back to 2012. In addition, they have
filed a Chartered Accountant’s certificate with sample invoices. The
certificate shows sales of about INR 5.45 billion and promotional
expenditure of about INR 173 million between the financial years 2012-13
and 2023-24. This material shows that the petitioners’ use of the mark began
more than a decade before respondent no.1 filed the impugned application
on 11.09.2023.
16. The law is settled that the rights of a prior user are superior to those of
a later registrant. In S. Syed Mohideen (supra), the Supreme Court held as
follows, after reading Sections 27, 28 and 34 of the Act together:
“30.4. … Thus, the scheme of the Act is such where rights of prior user are
recognised superior than that of the registration and even the registered
proprietor cannot disturb/interfere with the rights of prior user. …”
17. The Supreme Court also noted that the Division Bench of this Court
in Whirlpool had held that registration is not an indefeasible right and is
subject to the rights of a prior user. That view was affirmed by the Supreme
Court in N.R. Dongre (supra).
Signature Not Verified
Signed By:PRIYA
Signing Date:17.10.2026
13:22:27
Signature Not Verified
Signed
By:PURUSHAINDRA
KUMAR KAURAV

18. Respondent no.1, on the other hand, applied for an identical mark for
goods in the very field in which the petitioners trade, on a “proposed to be
used” basis. Its own website shows that it deals in air rifles and air pistols.
KIEHBERG is not a dictionary word. It is a coined word that also forms part
of the corporate name of petitioner no.1. Nothing on record shows how
respondent no.1 came to adopt it. When a trader in the same field adopts an
identical coined word for identical goods, without any explanation, the only
reasonable inference is that the adoption was not honest.

19. In Dorco Co. Ltd. (supra), this Court held that a respondent cannot
claim to be the proprietor of the impugned trademark as there is nothing to
show as to how the impugned trademark has been adopted, and that such an
application contravenes Section 18(1) of the Act. In Russell Corp Australia
(supra), the adoption of an identical mark for identical goods was held to be
an attempt to usurp the reputation of the prior proprietor and dishonest.
20. In view of the petitioners’ prior use and goodwill, use of the identical
mark by respondent no.1 for identical goods is likely to deceive the public
and cause confusion as to the source of the goods. Such use would be liable
to be restrained under the law of passing off. The registration was therefore
barred by Sections 9(2)(a) and 11(3)(a) of the Act. As held in Amit Sood
(supra), under Section 11 of the Act, any mark that would result in passing
off of the business of the applicant of the mark would not be liable to be
registered. A similar view was taken in Dorco Co. Ltd. (supra), where the
impugned registration was held to be against Section 11(3)(a) of the Act in
view of the petitioner’s prior use.
21. The stand of respondent no.2 does not change this conclusion. The
Registry, while examining an application, compares it only with marks on its
Signature Not Verified
Signed By:PRIYA
Signing Date:17.10.2026
13:22:27
Signature Not Verified
Signed
By:PURUSHAINDRA
KUMAR KAURAV

own record. It has no means of knowing about an unregistered prior user.
The fact that no similar mark was found on the Registry’s record does not
make the entry one made with sufficient cause. Similarly, the petitioners’
failure to oppose the application under Section 21 of the Act does not take
away their right under Section 57.
22. In Amit Sood (supra), this Court held that the mere fact that the
Petitioner may have missed opposing the mark does not mean that the
cancellation cannot be sought. The Court also observed that in cancellation
petitions it has a duty to ensure that the purity of the register is maintained.
23. There is no reply from respondent no.1 to justify or rebut any of the
aforesaid aspects. Where the registered proprietor chooses not to appear, the
petitioner’s pleadings, supported by documents, are to be treated as
unrebutted, as held in Crocs Inc. (supra) and Russell Corp Australia
(supra).
24. In view of the aforesaid, the Court directs cancellation of Registration
No. 6103985 dated 11.09.2023 for the trademark “KIEHBERG” in Class 13.
25. Respondent no. 2, the Registrar of Trade Marks, is directed to remove
the said registration from the Register of Trade Marks and to rectify the
Register accordingly, within a period of four weeks from the date of receipt
of a copy of this order.
26. As the prayer for costs has not been pressed, there shall be no order as
to costs.
27. The rectification petition stands allowed in the aforesaid terms. The
same is, accordingly, disposed of. Pending applications, if any, also stand
disposed of.
28. The Registry is directed to send a copy of this order to the Trade
Signature Not Verified
Signed By:PRIYA
Signing Date:17.10.2026
13:22:27
Signature Not Verified
Signed
By:PURUSHAINDRA
KUMAR KAURAV

Marks Registry for compliance.

(PURUSHAINDRA KUMAR KAURAV)
JUDGE
OCTOBER 13, 2026/p




Signature Not Verified
Signed By:PRIYA
Signing Date:17.10.2026
13:22:27
Signature Not Verified
Signed
By:PURUSHAINDRA
KUMAR KAURAV