Prior user rights and dishonest adoption of a surname justify trade mark rectification for non-use.

The Petitioner, trading as Agarwal Enterprises, registered the trademark ‘THUKRAL’ in Class 21 for brooms in 2003, claiming use since 1995

Respondent No. 2 filed Rectification Applications (ORA/30/2013/TM/DEL & ORA/31/2013/TM/DEL) seeking cancellation of the Petitioner's mark, asserting that their family had used ‘THUKRAL’ for identical goods since 1954

Between 2013 and 2016, the Petitioner repeatedly failed to file a Counter Statement despite multiple extensions and costs imposed by the IPAB

Consequently, the Registrar (Respondent No. 1) passed the Impugned Order on 10.05.2016, directing the removal of the Petitioner’s mark from the Register

The Petitioner challenged this order via writ petitions, alleging a lack of opportunity and the fault of previous counsel

Whether the Impugned Order was passed in violation of the principles of natural justice due to the Petitioner’s failure to file a Counter Statement

Whether Respondent No. 2 established superior rights over the mark ‘THUKRAL’ based on prior user

Whether the Petitioner’s adoption of the mark ‘THUKRAL’ was *bona fide* or amounted to fraud

The Court applied Rule 10 of the IPAB (Procedure) Rules, 2003, which mandates filing a counter-statement within two months of service

It relied on Section 34 of the Trade Marks Act, 1999, which stipulates that registration cannot interfere with the rights of a prior user

The Court further referenced Sections 27, 28, and 47 of the Act regarding the limits of registration and removal for non-use

Jurisprudentially, it cited *Yishudas Trading v. Vazier Sultan Tobacco Co. Ltd.* regarding the non-perpetual nature of trademark registration

and *Indo-Pharma Pharmaceutical Works Pvt. Ltd. v. Farbenfabriken Bayer Aktiengesellschaft* concerning fraud in procuring registration

The Court found that the Petitioner was granted ample opportunities over three years (2013–2016) to file a Counter Statement but failed to do so, rendering the plea of natural justice violation unsustainable

The Court noted that the Petitioner offered no explanation for adopting the surname ‘THUKRAL’ (his own name being Aggarwal), whereas Respondent No. 2 proved continuous use by their family since 1954

Applying Section 34, the Court held that prior user rights are superior to registration

It further observed that the Petitioner failed to produce evidence of *bona fide* use post-registration, whereas Respondent No. 2’s evidence remained unrebutted due to the Petitioner’s procedural default

The Court concluded that the Registrar's finding of "dishonest adoption" and "fraud" was a reasonable inference from the facts

The Court held that registration is not absolute and is subject to the rights of a prior user under Section 34 of the Act

It ruled that the Petitioner’s procedural negligence in failing to file a Counter Statement precluded him from challenging the Registrar’s findings on merits in a writ jurisdiction

The removal of the mark ‘THUKRAL’ from the Register was affirmed on grounds of prior user by Respondent No. 2 and dishonest adoption by the Petitioner