Judgment:
(Circuit Bench Sitting at New Delhi)
HON'BLE Ms.S.USHA, TECHNICAL MEMBER:
The main rectification application is for removal of the trade mark MILTON registered under No.1198540 in class 11 from the Register of Trade Marks under section 57 of the Trade Marks Act, 1999 (hereinafter referred to as the Act). The application for rectification is filed on various grounds as the registration is alleged to be in contravention of the provisions of the Act.
2. Along with the rectification application two miscellaneous petitions i.e. M.P. No.57/07 and M.P.No.57/08 have been filed.
3. M.P. No.57/07
M.P.No.57/07 has been filed by respondent herein for a direction from this Appellate Board that the statement of case so filed does not form part of the case file and the respondent may deal only with the case as set up in the statutory Form No.1.
4. M.P.No.57/08
M.P.No.57/08 has been filed by the applicant herein praying that this Appellate Board may be pleased to allow the amendments as sought for in the application and take the amended Form 1 and amended statement of case on record.
5. We shall first deal with the M.P. No.57/07. This miscellaneous petition has been filed stating that the statement of case filed along with the statutory Form 1 are totally different from one another. In fact, there cannot be a supplementary pleadings to the main pleadings. In the form there has been a mention of one petitioner only whereas the statement of case contains the names of six petitioners. The Form 1 is the only Form available through which the applicant can put forth the case. The statement of case which contains contrary and opposite statements and the same be not taken on record. The direction herein sought is necessary for proper adjudication of the application.
6. The respondent in the miscellaneous petition (applicant in the main application) filed their reply to the miscellaneous petition denying the various averments made in the miscellaneous petition. They submitted that the miscellaneous petition is an abuse of process of law, misconceived, vexatious and untenable in law. This petition has been filed merely to scuttle the disposal of the main application on merits and to delay the progress. The petition has got to be dismissed in liminie with heavy costs since there is no legal basis in the petition. The application for rectification is in accordance with the Form prescribed under the Trade Marks (Applications and Appeals to the Intellectual Property Appellate Board) Rules, 2003. The respondent also stated that there is no discrepancy whatsoever in the application for rectification. The respondent also stated the petition is frivolous and requires no consideration by this Appellate Board. An application is being filed to correct the said error which is formal in nature. If there was any discrepancy, the petitioner should have set them out in the application so as to give the respondent an opportunity to rectify the same and the petitioner herein cannot raise them at the time of hearing.
7. During the course of argument, the learned counsel contended that if the miscellaneous petition is allowed then the other miscellaneous petition No.57/08 does not survive. The counsel also submitted that in Form 1 the (applicant) respondent has mentioned only one petitioner i.e. M/s Milton Plastics Ltd., whereas in the statement of case at page 80 of the application, six petitioners names have been given which is contrary to one another. Form 1 does not contain any information as to the registration obtained by the respondent. The application though has been jointly filed, has been signed by one person.
8. In reply to the petitioners arguments, the respondent contended that the petition was frivolous and misconceived. Form 1 was the one where grounds for rectification was given and the statement of facts contained the facts of the applicants business.
9. We have heard both the counsel and have gone through the application for rectification.
10. Apart from the discrepancy, we are also of the view that there cannot be more than one applicant in the application for rectification. In fact the application in Form 1 does not reveal the position as to how the applicant is a party to the proceeding. The statement of case shows that the only applicant mentioned in the application is the 6th applicant which is the company and applicants 1 to 5 are the directors of the 6th applicant. This Appellate Board has already held in such matters that only one petitioner can be a person aggrieved and an application can be filed only by one applicant. The licencees rights arises from the registered proprietor and so the licencee becoming a co-applicant does not arise. The registered proprietor can protect his statutory rights independently to initiate rectification proceedings.
11. In view of the above, we find merits in the miscellaneous petition which has got to be allowed. Therefore, M.P. No.57/07 is allowed.
12.M.P.No.57/08 does not survive in view of the reason that M.P.No.57/07 is allowed. Having allowed M.P.No.57/07, we dismiss the original rectification application as not maintainable.