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C.A.(COMM.IPD-TM) 19/2023 SIDHARTH POPLI ..... Appellant
Through: Mr. Abhishek Kotnala, Adv.
Through: Mr. Harish Vaidyanathan Shankar, CGSC with Mr. Srish Kumar
Mishra, Mr. Sagar Mehlawat and Mr. Alexander Mathai Paikaday, Advs.
JUDGMENT
01.08.2023
1. Subject to the appellant filing legible copies of any dim or illegible documents within 30 days, exemption is granted for the present. I.A. 13950/2023 (Exemption)
2. The application is disposed of.
3. This application seeks permission to file additional documents. The appellant is permitted to place additional documents on record in accordance with Order XI Rule 1(4) of the Code of Civil Procedure, 1908 (CPC) as amended by the Commercial Courts Act, 2015 within four weeks from today. I.A. 13951/2023(Order XI Rule 1(4) of the CPC)
4. The application stands disposed of accordingly.
5. The appellant moved trade mark Application No. 3848803 on 31 May 2018, seeking registration of the device mark for “Tobacco (Raw & Processed), Flavored Tobacco, Flavored Molasses, Smoker's Articles, Cigarettes & Matches etc. as covered in class 34”.
6. The impugned order dated 19 April 2023 rejects the application on the ground that the mark is highly descriptive of the goods in question, as it clearly depicts a hookah which is a smoker’s article.
7. Mr. Vaidyanathan, learned Counsel for the respondent submits that if the appellant is willing to enter a disclaimer in the registration, not to claim exclusivity for the physical depiction of the hookah apparatus ( )forming part of the device mark in question.
8. Mr. Abhishek, learned Counsel for the appellant, on instructions, undertakes that his client would not claim exclusivity in respect of the hookah apparatus, part of the device mark forming subject matter of controversy.
9. In that view of the matter, given the statement made by Mr. Vaidyanathan, this appeal is disposed of by setting aside the impugned order and directing the Registrar of Trademarks to register the device mark, subject to a disclaimer by the appellant not to claim exclusivity in respect of the hookah apparatus forming part of the said device mark.
10. The appeal stands disposed of in the aforesaid terms.
11. This application does not survive for consideration and is disposed of. I.A. 13949/2023 (Stay) C.HARI SHANKAR, J AUGUST 1, 2023 rb