Suresh Kumar Jain vs Union of India and Another

Nobody appears on behalf of the appellant. We have gone through the record with the assistance of the learned counsel for the respondent. The appellant had got trademark registered Laminated Veneer Lumber (LVL) in his name for which certificate dated 16.8.2004 was issued in his favour granting the registration from the date of application i.e. 27th October, 1997. The respondent No. 2, M/s Jain Doors Private Ltd. (hereinafter referred to as JDPL) challenged the said registration by moving rectification application before the Intellectual Property Appellate Board, M.P. (hereinafter referred to as the IPAB). This application was allowed by the IPAB vide orders dated 16.11.2006.

Challenging that order, the petitioner had preferred writ petition 72/2007 that has been dismissed by the learned Single Judge of this Court vide impugned orders dated 5th March, 2010 thereby affirming the order of the IPAB. It is the said order of the learned Single Judge which is assailed by the appellant by means of present appeal.

We may record that the appellant has filed an application for registration of the trademark Laminated Veneer Lumber (LVL) in class 19 in respect of doors, windows and their frames. In the rectification application preferred by JDPL, the case set up by the JDPL was; the claim of the appellant that it has been using the mark since 1995 was not supported by any document and, therefore, the mark was registered on false basis and the mark lack distinctiveness and ought not to have been registered in terms of Section 9 of the Trademark Act. According to JDPL, the trademark Laminated Veneer Lumber (LVL) was germane in name and unless the appellant was distinctive such a name should not have been registered. The IPAB accepted both the submissions of the JDPL. In the first instance it was held that on the basis of evidence produced by the appellant in the form of invoice it could be shown that the appellant was using mark Laminated Veneer Lumber (LVL) only since 1997 and there was no document to show that the appellant was using trademark from 1st April, 1995 as claimed. On that basis, IPAB held that the registration had been obtained by false statement and fraud. IPAB also held that the name LVL was very descriptive of the goods and had not acquired any secondary claim. The learned Single Judge did not go into the second aspect. Perusal of the impugned order would reveal that even before the learned Single Judge the appellant could not produce any evidence to show that the appellant had been using the trademark since April, 1995 as claimed by the appellant and the documents show that trademark in question had been commercially exploited only from the year 1997. On this basis alone, the learned Single Judge has affirmed the finding of the IPAB holding that the trademark was registered on the basis of false statement and fraud.

The aforesaid finding of the IPAB is based on evidence on record which has been accepted by the learned Single Judge. In this appeal, that too, which arises from the order passed in the writ petition by the learned Single Judge in exercise of his power under Article 226 of the Constitution of India, this Court is not supposed to go into the findings recorded by the IPAB which is a fact finding authority. Once we accept that the appellant has not been able to place on record any evidence to show that the appellant had been using the trademark from April, 1995 which was the basis of seeking the registration, the conclusion would be that the registration was obtained on the basis of false statement and would amount to fraud. We thus find that the order of the learned Single Judge is perfectly valid and without any blemish and we do not find any merit in this appeal which is accordingly dismissed. We may also record that the appellant had even filed a suit for infringement of the trademark against JDPL in the Court of learned Senior Civil Judge, Delhi which was ultimately dismissed as withdrawn.