Vinod Kumar Proprietor of Kunal Trading Corporation v. State (NCT of Delhi) & Ors.

1. The petitioner has filed the present petition, inter alia, impugning the FIR No.154/2020 under Sections 103 and 104 of the Trade Marks Act, 1999 (hereafter ‘the Trade Marks Act’) registered with PS Kamla Market.

2. The said FIR was registered at the instance of respondent no.4. The controversy in the preset petition relates to use of the Trademark – (hereafter ‘the Trademark’) in relation to manufacture and trade of bearing, bearing brackets, ball rings for bearing, parts and fittings for use in motor vehicle and automobiles. The petitioner claims that the petitioner has been using the Trademark since 2009. 2020:DHC:2837 The petitioner applied vide application no.1989336 for registration of the said the Trademark in Class 7 in relation to bearing, bearing brackets, ball rings for bearing on 06.07.2010. Subsequently, the petitioner also filed another application (application bearing no.3318333) for registration of the Trademark in class 12 in relation to parts and fittings for use in motor land vehicles and automobiles. The petitioner claims that, thereafter on 10.12.2019, he also secured the Copyright Registration of artistic work of the Trademark.

3. On 14.03.2020, the petitioner filed a rectification petition (petition no.268248 in application no.1329050) seeking rectification of the registration of the Trademark in favour of respondent no.4. Respondent no.4 is contesting the said rectification application and the said matter is pending. Thereafter, on 03.07.2020, respondent no.4 also filed a rectification petitions (ORA/108/2020/TM/DEL and ORA/117/2020/TM/DEL) along with miscellaneous application (MP 78/2020 in ORA/108/2020/TM/DEL and MP 79/2020 in ORA/117/2020/TM/DEL) for stay of operation of the registration of the Trademark granted in favour of the petitioner.

4. By an order dated 10.07.2020, the Intellectual Property Appellate Board has stayed the operation of the registration of the Trademark under application no.1989336 in class 7 and 3318333 in class 12 in favour of petitioner.

5. In the context of the aforesaid disputes, respondent no.4 lodged a FIR, which was registered on 23.07.2020.

6. Mr Chauhan, the learned counsel appearing for the petitioner states that the petitioner is the proprietor of the Trademark in question, therefore, a complaint under Sections 103 and 104 of the Trade Marks Act is not maintainable. He submits that the said complaint can be made only in case of falsification of the Trademark and in cases where any person uses the Trademark without permission and consent of proprietor. He submits that in the present case, the petitioner is claiming to be the proprietor of the Trademark in question and, therefore, the provision of Sections 103 and 104 of the Trade Marks Act are wholly inapplicable.

7. Next, he submits that since, the petitioner has filed a rectification application regarding the registration of the Trademark in favour of respondent no.4, a complaint under Section 103 and 104 of the Act cannot be maintained unless the said rectification application is disposed of. He also relies on the provision of Sections 113 of the Trade Marks Act, 1999, in support of his contention.

8. Insofar as the petitioner’s claim that he is a proprietor of the Trademark is concerned, the petitioner cannot claim himself to be the registered proprietor of the Trademark in view of the order passed by the Intellectual Property Promotion Board staying the registration of the Trademark in his favour.

9. It is well settled that a FIR cannot be quashed except in very limited cases where it is established that the complaint is even malafide or the allegations made in the complaint do not disclose commission of any offence. Considering the restricted grounds on which a FIR can be quashed, the relief prayed by the petitioner cannot be acceded to.

10. The contention that the FIR is not maintainable in view of Section 113 of the Trade Marks Act is also unpersuasive. Section 113 of the Trade Marks Act reads as under:-