2. Your petitioner carries on business as a manufacturer of, dealer in and exporter of Electronic goods and Computer articles both hardware and software.
3. The first respondent is the registered proprietor of Trade Mark No. 10 in Class I in respect of Computer and Electronic articles.
5. The third respondent is the Registrar of Trade Marks having his address as mentioned above within the jurisdiction of this Hon’ble Court.
6. Your petitioner in the year 1991 adopted the Trade Mark Unity hereinafter referred to as the petitioner’s mark and the said adoption of the said mark was without any knowledge of the first respondent’s said mark and has since been selling its products with the said mark unity.
10. Without replying to the said letter of your petitioner, respondent Nos. 1 and 2 filled a suit in the Madras High Court alleging infringement of first respondent’s said purported Trade Mark. The suit has been numbered as 259 of 1997 and the suit is still pending before the said Hon’ble High Court. A copy of the plaint filed in the Hon’ble Madras High Court is annexed hereto marked ‘D’.
12. The first respondent’s registration of the mark in the records of the Registry is in respect of a variety of goods. Many of such goods have not been marketed or sold or used in the Indian market for the last six years. The first respondent’s said mark is liable to be rectified by expunging or deleting from the specification of the items covered by your petitioner’s said mark unity in accordance with the provisions of s. 16 of the said Act.
14. Your petitioner states that the first respondent’s said mark was registered without any bona fide intention to use the same in respect of the first respondent’s goods for which the mark was registered. As a matter of fact, there was no bona fide use of the said mark by the first respondent in selling the goods upto a date of one month prior to the making of the present application.
15. Prior to the date of this application for a continuous period of six years there was no bona fide use of the first respondent’s mark in relation to the goods sold by your petitioner under the mark unity.
17. In view of the aforesaid your petitioner states that the first respondent obtained registration of the said mark utility without any intention to use it, either by itself or through respondent No. 2. Your petitioner states that the first respondent’s said mark is, therefore, liable to be and be removed from the Register under s. 18 of the said Act.
19. The Trade Mark Registry of Calcutta is situated at the address given in the Cause Title where all the records in relation to the first respondent’s Trade Marks are situated and are being maintained and as such this Hon’ble Court has the jurisdiction to entertain, try and determine this petition.
21. Unless orders are made as prayed for herein your petitioner will suffer irreparable loss and injury.
22. This petition is made bona fide and in the interest of justice.
Your petitioner, therefore, humbly prays Your Lordships for the following orders:
(a) Direction on respondent No. 3 to rectify the Register of Trade Marks by expunging or cancelling the first respondent’s registered trade mark utility being No. 10 in Class I from the Register;