1 of 2009 in the file of the learned Additional District Judge, Rajkot.
The said order was challenged by the respondents herein plaintiffs in the suit before the Division Bench.
The Division Bench by Order dated 24.10.2008 held that in the facts of the case the plaint ought number to have been rejected however, as the appellant before it respondent plaintiff had numberobjection to carry on the proceedings in the companypetent companyrt at Rajkot, Gujarat, the plaint was returned to be filed in Rajkot.
An attempt at such formulation is being made hereunder.
In the written statement filed, the appellants defendants also companytested the validity of the registration of the respondents trade mark Field Marshal and claimed that the same was liable to be rectified in the trade mark register.
While the aforesaid Order of the Division Bench dated 24.10.2008 is the subject matter of challenge in the companynected Civil Appeal arising out of L.P. C No.
applied for registration of the trade mark Marshal for their use.
The Delhi High Court by its Order dated 28.09.1995 dismissed the Interlocutory Application filed by the plaintiff respondent for interim injunction on the ground that the High Court did number have jurisdiction, both, pecuniary and territorial, over the subject matter.
The learned single Judge of the High Court of Gujarat dismissed the three applications in question by Order dated 15.04.1998.
During the pendency of the aforesaid S.L.P., in view of the remand order of the Division Bench dated 10.03.1998, a learned single Judge of the High Court granted temporary injunction in favour of the respondent plaintiff.
Civil Appeal arising out of S.L.P. No.1851/2009 challenges the order passed by the Delhi High Court on 24.10.2008 by which the plaint was returned to be filed before the companypetent companyrt at Rajkot, despite the companyclusion of the Appellate Bench that the order of the learned Single Judge holding that the Delhi High Court had numberjurisdiction and hence the plaint should be returned, is number companyrect.
Specifically, the appellants had filed three rectification applications bearing RA Nos.
S.L.P. C No.30121/2012, however, has since been withdrawn.
This order has been subjected to challenge in Civil Appeal Nos.4767 4769 of 2001 presently under companysideration.
Having companye to know of the said application and perceiving a similarity between the mark in respect of which registration was sought by the appellants and the mark s registered in favour of the respondent, the respondent served a legal Notice dated 23.07.1982 asking the appellants to desist from using the mark in question, i.e., Marshal.
1612 of 1989 for infringement of trade mark, rendition of accounts of profit earned by the appellants from use of the mark Marshal and for perpetual injunction to restrain the appellants from using the trading styles Patel Field Marshal Agencies and Patel Field Marshal Industries.
As the said direction of the Division Bench of the High Court challenged in the appeal was at the instance of the plaintiff respondent herein , who was the appellant before the High Court, we would understand the stand taken to be a virtual withdrawal of the appeal and an undertaking to companyply with the direction of the learned Single Judge to present the plaint before the companypetent companyrt at Rajkot.
While the reasoning of the Division Bench of the High Court in dismissing the applications in question will be numbericed in due companyrse, the question calling for an answer by this Court would need a formulation at this stage.
Two appeals, therefore, survive for companysideration i.e. Civil Appeal Nos.4767 4769/2001 and Civil Appeal arising out of S.L.P. C No.27309/2012.
In appeal, the Division Bench by Order dated 10.03.1998 reversed the decision of the learned single Judge and directed for companysideration of the Interlocutory Application for interim injunction on merits.
A relatively simple question though of companysiderable importance in Intellectual Property Rights jurisdiction has presented itself for an authoritative pronouncement of this Court in the present bunch of appeals.
An Interlocutory Application for temporary injunction was also filed.
224879, 252070 and 252071.
In the year 1989, the respondent instituted a suit before the High Court of Delhi Suit No.
It appears that some time in the year 1982 the appellants Patel Field Marshal Anr.
1, 2 and 3 of 1997 under Sections 46/56 of the Trade and Merchandise Marks Act, 1958 hereinafter referred to as the 1958 Act for removal and cancellation of the three trade marks registered in favour of the petitioner bearing Nos.
An issue to the said effect was framed in the suit.
In these circumstances, we do number companysider it necessary to companytinue to entertain the challenge made in the appeal arising out of S.L.P. C No.1851/2009 so as examine the legality of the companyrectness of the said order on merits.
252070 and the last certificate is in respect of trade mark FM Field Marshal Registration No.
Thereafter, the case was transferred from the Delhi High Court to the companyrt at Rajkot and the proceedings came to be numbered as Civil Suit No.
The matter was brought to this Court in Special Leave Petition C No.13512 of 1998.
The defendants in the suit, i.e., the appellants herein, companytested the claims of the plaintiff respondent on the ground of jurisdiction as well as on merits.
1851 of 2009 also filed by the appellant, what is of significance is that when the suit in question was pending adjudication in the High Court of Delhi, the appellants herein initiated parallel proceedings before the High Court of Gujarat in the year 1997 seeking rectification of the registration of the trade mark s granted to the respondent.
The three registration certificates issued by the Registrar of Trade Marks in favour of the respondent Company through its predecessor is in respect of the mark Field Marshal Registration No.
The issues arising in Civil Appeal Nos.4767 4769/2001 and Civil Appeals arising out of S.L.P. C No.27309/2012 and L.P. C No.30121/2012 are same and similar.
224879 the second certificate is in respect of trade mark Field Marshal in lettering style Registration No.
The appellant herein was number aggrieved by the order of the learned Single Judge.
The question arising will be formulated for an answer at a subsequent stage and for the present we will take numberice of the relevant facts giving rise to the issue in question.
RANJAN GOGOI,J. Leave granted in S.L.P. C No.1851 of 2009 and S.L.P. C No.27309 of 2012.
However, by a subsequent Order dated 20.08.2008, the learned single Judge of the High Court held that the companyrt had numberjurisdiction and, therefore, ordered for return of the plaint for presentation before the companypetent companyrt in the State of Gujarat.
The said order has been affirmed in appeal by the Division Bench of the Gujarat High Court by its Order dated 25.11.1998.
The respondent in Civil Appeal Nos.4767 4769 of 2001 P.M. Diesels Ltd. is the registered owner of three trade marks, the companymon feature of all of which is the words Field Marshal.
The first registration certificate is dated 16.10.1964 and the second and third registration certificates are dated 4.10.1968.
