Prathiba M. Singh, J
1. This hearing has been done through hybrid mode.
I.A.11901/2023 (for exemption)
2. Allowed, subject to all just exceptions. Application is disposed of.
C.O. (COMM.IPD-TM) 179/2023
3. Issue notice to the Respondent No.1-Dilip Kumar Bacha, trading as Shree Ganesh Namkeen through all modes, including to the current trademark agent- Ms. Rukmani Dhangar as reflected on the Trademarks Registry website.
4. This is a cancellation petition filed by the Petitioner - The Hershey Company under Section 57 of the Trade Marks Act, 1999 (‘the Act’) seeking cancellation of registered trademark ‘HARSHY’ bearing TM Application no. 3897902 dated 25th July 2018 (‘subject mark’), registered in the name of one Shri Dilip Kumar Bacha, proprietor of Shree Ganesh Namkeen. The address of the Respondent No.1 is: 03, Balaji Market, Cat Road, Near Kundan Nagar, Indore, Madhya Pradesh.
5. At the outset, the Court put a query to ld. Counsel for the Petitioner as to how the present cancellation petition would be maintainable, as the appropriate office of the Trade Marks Registry for the said subject mark is the Office of the Trade Marks Registry in Mumbai. Ld. Counsel for the Petitioner seeks to draw a parallel with the designation of ‘High Court’ under Section 2(1)(i) of the Patents Act, 1970, and seeks to rely upon the decision of this Court in Dr. Reddys Laboratories v. Controller of Patents (2022/DHC/004746).
6. Heard. Prima facie, in the opinion of this Court, insofar as the subject trademark is concerned, since the Act does not define the expression `High Court’, the High Court before which the cancellation petition by the Petitioner would lie, would be the High Court within whose jurisdiction the appropriate office of the Trade Marks Registry qua the subject registration, would be located - in this case, the Bombay High Court.
7. However, considering the fact that this issue has arisen after enactment of the Tribunal Reforms Act, 2021, it is deemed appropriate to permit the Petitioner to make submissions on this issue. The Petitioner is also permitted to file a written note of arguments, along with the provisions of law as also any other decisions that he wishes to rely upon. If any other member of the Bar wishes to make submissions on this aspect, they are free to do so.
8. Considering the nature of the issues involved, Mr. Arun Mohan, Advocate (M:9600020715) from Chennai, and Mr. Alankar Kirpekar, Advocate (M:9323166787) from Mumbai are appointed as amici curiae to assist the Court in this matter. The Registry of the Court, and ld. Counsel for the Petitioner to inform them of this Order. The amici curiae shall file a note of their submissions at least two days before the next date of hearing.
9. The Registry of the Court is directed to give intimation of the filing of the present petition to the Respondent through all modes including through email. The service shall be also affected through email on the trademark agent for the Respondent Ms. Rukmani Dhangar [23979], with the following contact details:
Email address: Siddhivinayakassociates2018@gmail.com
Address: 201, Siddhivinayak Associates, Sterling Arcade, Near Janjirwala Square, Indore-452001
10. List on 17th July, 2023.
