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Judgment
S. Usha, J
The instant original rectification application was filed for removal of the trade mark under No. 531081 in class 12 under the provisions of the Trade
Marks Act, 1999 (hereinafter referred to as the Act).
The application for rectification was made on the grounds that the respondent No. 1 was not the proprietor of the trade mark within the meaning of
Section 18(1) of the Act; that the registration was in contravention of the provisions of Section 11 of the Act; that the registered trade mark is wrongly
remaining on the Register without sufficient cause; that the registration has been obtained by playing fraud and that the mark ought to be cancelled as
per the provisions of Section 47 of the Act.
The respondent No. 1 filed their counter statement denying the various averments made in the application for rectification. They further stated that
they conceived and adopted the trade mark as early as 1980 to the knowledge of the applicant. The respondent No. 1 is the lawful owner and
registered proprietor of the trade mark. By virtue of use, the mark had become distinctive and qualified for registration. On no account the impugned
trade mark registration is in contravention of the provisions of the Act.
On completion of the pleadings, the matter was set down for hearing on various dates and finally taken up on 08.06.2010. Both the counsel were
present. The counsel for the applicant stated that the impugned trade mark has been removed from the Register for non-payment of renewal fees and
produced the copy of the Trade Marks Journal No. 1435 dated 01.03.2010 to that effect. The counsel for the respondent No. 1 admitted that the mark
has been removed from the Register and stated that in view of the above nothing survives in the rectification application.
The original rectification application is, therefore, dismissed as infructuous. There shall be no order as to costs.