Prior-user rights prevail over later registration of an identical mark for overlapping goods.

The petitioners sought cancellation under Section 57 of the Trade Marks Act, 1999 of Respondent No. 1’s registration of “KIEHBERG” in Class 13.

They claimed use of the mark in India since 21 March 2012. Their evidence included incorporation records, domain-name and social-media records, invoices, and a Chartered Accountant’s certificate recording substantial sales and promotional expenditure from 2012–13 to 2023–24.

Respondent No. 1 applied for the identical mark on a “proposed to be used” basis on 11 September 2023; the mark was registered on 26 May 2024. The petitioners’ later applications for “KIEHBERG” were objected to under Section 11(1) because of that registration.

Respondent No. 1 was served but did not file a reply or appear. The Court nevertheless considered the evidence and merits rather than allowing the petition automatically.

Whether the petitioners were “persons aggrieved” entitled to seek rectification under Section 57(2) of the Act.

Whether the registration of “KIEHBERG” was liable to cancellation because of the petitioners’ prior use and the likelihood of confusion or passing off.

Whether the Registrar’s examination of the application and the petitioners’ failure to oppose it under Section 21 prevented cancellation under Section 57.

Section 57(2) of the Trade Marks Act permits rectification where an entry was made without sufficient cause or is wrongly remaining on the register.

A person whose own application is obstructed by the challenged registration may qualify as a “person aggrieved”; the standing inquiry is to be applied liberally (Hardie Trading Ltd. v. Addisons Paint & Chemicals Ltd.).

A mark is wrongly registered where a ground for refusal under Section 9 or Section 11 is established (Russell Corp Australia Pty Ltd. v. Ashok Mahajan).

Sections 27, 28 and 34, read together, recognise that prior-user rights prevail over the rights of a later registrant (S. Syed Mohideen v. P. Sulochana Bai); registration is not indefeasible and remains subject to prior-user rights (N.R. Dongre v. Whirlpool Corporation).

Under Sections 9(2)(a) and 11(3)(a), a mark liable to deceive or cause confusion, including by passing off another’s business, is not registrable.

The Court also relied on the principle that adopting an identical mark without explanation for identical goods may contravene Section 18(1).

Failure to oppose a mark under Section 21 does not preclude a later cancellation petition under Section 57.

The petitioners’ applications had been objected to because of the impugned registration, establishing that they were directly affected and therefore persons aggrieved.

Their documentary evidence demonstrated use beginning in 2012, well before Respondent No. 1’s 2023 application, together with substantial sales and promotional expenditure.

Respondent No. 1 sought registration of the identical coined mark for goods in the same field on a proposed-to-be-used basis; its website showed that it dealt in air rifles and air pistols, but the record disclosed no explanation for its adoption of “KIEHBERG”.

The Court inferred dishonest adoption and found that use of the identical mark for identical goods was likely to cause confusion and constitute passing off, engaging Sections 9(2)(a) and 11(3)(a).

The Registry’s search of its own records could not account for an unregistered prior user, and neither the absence of an earlier conflicting entry nor the petitioners’ failure to oppose the application defeated the Section 57 claim.

Although Respondent No. 1 did not contest the petition, the Court independently assessed the supporting material.

It directed the Registrar of Trade Marks to remove the registration and rectify the Register within four weeks of receiving the order. The petition was allowed; there was no order as to costs, and pending applications were disposed of.