Permission to cross-examine in rectification proceedings is discretionary and sparingly granted only for compelling factual disputes.

The Petitioner, Bennett, Coleman and Co. Ltd., filed two rectification petitions under Section 57 of the Trade Marks Act, 1993, challenging the Respondent’s registration of the mark "/E!".

The challenges were based on non-use in India for over five years (Reg. No. 1252812) and lack of distinctive character (Reg. No. 2340887).

After issues were framed, the Respondent filed evidence by way of an affidavit from witness Ms. Monique Cheng (RW-1).

The Petitioner subsequently filed I.A. 2999/2025 and I.A. 2998/2025 seeking permission to cross-examine RW-1, alleging that the documents relied upon originated in the USA and that the user claims made before the Registry were false.

1. Whether the Petitioner has a vested or inherent right to cross-examine a witness in rectification proceedings under the Trade Marks Act.

2. Whether the Court should exercise its discretion under Rule 7(viii) of the IPD Rules to permit cross-examination of RW-1 based on the nature of the documentary evidence and the legal questions involved.

The Court primarily applied Rule 7(viii) of the Delhi High Court Intellectual Property Rights Division Rules, 2022 [‘IPD Rules’], which mandates that cross-examination is an exception and requires recorded reasons for necessity.

It further relied on the principles established in *The Financial Times v. The Times Publishing House Ltd.* (2016), which held that trademark proceedings are primarily documentary and the power to allow cross-examination should be exercised sparingly.

The Court also referenced Section 57 and Section 47(1)(b) of the Trade Marks Act, 1999, regarding the burden of proving non-use.

Rule 29 of the IPD Rules, noting that specific rules override residuary procedural provisions.

The Court reasoned that under Rule 7(viii) of the IPD Rules, cross-examination is not a matter of right but a discretionary power to be used only when the Court finds it necessary.

Upon reviewing RW-1’s affidavit, the Court observed that the witness deposed based on official company records rather than personal knowledge, and the documents (YouTube videos, domain registrations) were publicly available.

Following *The Financial Times* precedent, the Court noted that issues such as "distinctiveness" and "deceptive similarity" are matters of judicial perception and opinion based on the mark and documents, not oral testimony.

The Court found the Petitioner failed to specify which documents were forged or fraudulent; a "bald assertion" that documents require proof is insufficient to trigger cross-examination.

Regarding the non-use claim, the Court held that the initial burden of proof lies on the Petitioner, and any deficiencies in the Respondent's evidence of "use" can be addressed during final oral arguments without needing a trial.

The Court affirmed that in rectification proceedings, the determination of statutory parameters is based on documentary evidence and judicial evaluation, and the Petitioner cannot use cross-examination as a tool to fill lacunae in its own case.

The matters were directed to be listed for further directions on March 16, 2026.