Patent Error in grant of registration – Calcutta HC orders removal of MARUTI 100 HUNDRED trademark

The Intellectual Property Rights Division of the Calcutta High Court has allowed an application for rectification of the trademark “MARUTI 100 HUNDRED” (label) registered in the name of Varun Ritolia, conducting business as Shri Maruti Dhoop Agency. The order was passed by Hon’ble Justice Ravi Krishan Kapur in case number IPDATM/237/2023.

The application was filed by Amir Chand Om Prakash, a registered partnership firm involved in the manufacturing and trading of “Dhoopbattis and Agarbattis” since 1935. The petitioner argued that they are the first adopter and lawful proprietor of the trademark “MAHABIR” along with the device “MARUTI/HANUMAN,” which has been continuously and uninterruptedly used since 1935.

The dispute revolved around the registration of a deceptively similar trademark “MARUTI 100 HUNDRED” (label) under registration number 1317652 in Class-3, pertaining to “agarbattis and incense sticks.” The petitioner contended that the impugned registration was obtained in violation of several provisions under the Trade Marks Act, 1999, including Sections 9(1), 9(2), 11, 18, and 57.

The petitioner further argued that there was a “patent and glaring defect” in the registration process as the Assistant Registrar of Trademark, Kolkata, had imposed a territorial restriction limiting the sale of the goods to the states of Bihar and Jharkhand. However, this restriction was neither reflected in the Register nor in the advertisement published in the Official Gazette dated 1st July 2005.

Justice Kapur noted, “There is a patent error in the grant of registration of the impugned mark in favour of the respondent no. 1. Notwithstanding the order dated 7 June, 2005, the condition or restriction on the territorial limits… has not been reflected either in the advertisement… or the Official Gazette…”

Interestingly, Respondent No. 1, Varun Ritolia, chose to remain unrepresented despite service having been duly effected. Meanwhile, Respondent No. 2 argued that the registration procedure was flawed due to the absence of the territorial restriction, which constituted a “procedural error” warranting rectification.

The Court directed Mr. Indrajeet Das Gupta and Mrs. Priti Jain, who regularly appear on behalf of the Registrar of Trade Marks, to continue their representation and directed the Appropriate Authority to regularize their services in this matter.

Allowing the application, Justice Kapur ordered the rectification of the impugned trademark. The Court held that the registration in Class-3, in favor of Respondent No. 1, was granted erroneously and must be corrected. The Court directed Respondent No. 2 to take “necessary steps in accordance with law” to effectuate the rectification.