PATEL FIELD MARSHAL AGENCIES Vs. P M DIESEL LIMITED

JUDGEMENT

(1.) All these three applications are filed by one and the same applicants and the respondents in all the three applications are also one and the same respondents. All the applications were heard together with the consent of the parties on preliminary issues and those preliminary issues are being decided by this common judgment.

(2.) The applicants in all the applications are partnership firms and the applicants have filed all these three applications under the provisions of Sec. 46 read with Sec. 56 of Trade and Merchandise Marks Act, 1958 (hereinafter referred to as the said Act) and the applicants are claiming the rectification of the registration of the Trade Mark No. 224875 in clause 7, Trade Mark No. 25071 in clause 7 and Trade Mark No. 252070 in clause 7 by removal and cancellation of the trade mark in favour of respondent No. 1 from the Register of Trade Marks by preferring these Rectification Application No. 1 of 1997, 2 of 1997 and 3 of 1997. The rectification of the said Trade Mark by way of removal and cancellation is sought on various grounds including the ground of obtaining said registration by playing fraud, violation of the provisions of the Emblems and Names (Prevention of Improper use) Act, 1950 and disclaimer on account of the Trade Mark "MARSHAL" being extensively and commonly used by a majority of manufacturers of the diesel oil engines as suffix to their Trade Mark. It is not necessary to mention in detail the grounds taken by the petitioner for seeking the rectification of the mark of respondent No. 1 "MARSHAL" in this judgment as I am dealing with the two preliminary objections raised on behalf of the respondents in support of their claim of rejection of these applications.

(3.) All the three rectification applications are opposed by respondent No. 1 by filing affidavit-in-reply/counter statement. It is contended that present applications are not bona fide filed by the applicants and the applicants have filed the same to throttle the Suit No. 1612 of 1989 filed by the respondent No. 1 against the present petitioner on the original side of the High Court of Delhi. It is contended that in view of the provisions of S.107 and 111 of the said Act, present rectification proceedings are not tenable. It is further contended that the present proceedings is a clear misuse of the process of law and therefore, the same should be rejected. It is further contended that the present proceedings are barred by law of limitation and therefore, on that ground alone, present applications deserve to be dismissed.