Title: VIMAL AGRO PRODUCTS P. LTD. V. CAPITAL FOODS P. LTD. & ANR
Decided on: 11th October 2023
C.O. (COMM.IPD-TM) 227/2023, I.A. 19904/2023 & 19905/2023
Coram: JUSTICE PRATHIBA M. SINGH
Introduction
Vimal Agro Products Private Limited has filed a rectification petition in the Delhi high court, under Section 57 of the Trademarks Act, 1999 seeking cancellation of the trademark ‘SCHEZWAN CHUTNEY’ registered by Capital Foods P. Ltd.
Facts of the Case
Delhi High Court had refused to grant interim injunction in favor of Capital Foods in Capital Foods Pvt. Ltd. v. Radiant Indus Chem Pvt. Ltd., holding that the mark “SCHEZWAN CHUTNEY” was descriptive. An ad-interim injunction was granted in connection with trade packaging, reproduction, adoption and imitation of the original works of Capital Foods with respect to its marketing and advertising contents. On appeal the order was stayed by a division bench. Ching’s Secret owner Capital Foods also claims use of mark “SCHEZWAN CHUTNEY” since year 2012. To prevent unauthorized use of its mark, Capital Foods had initially filed a suit against Vimal Agro before District Judge, Nasik. Pursuant thereto, Vimal Agro had sought leave from the Nasik Court u/s 124 of Trademarks Act to seek rectification of Capital Foods’ registration before the Bombay High Court. Upon obtaining permission, Vimal Agro moved to the Delhi High Court, instead of Bombay.
Court Analysis and Decision
The court noted two contentions of the Petitioner, that ‘SCHEZWAN CHUTNEY’ is a descriptive and a generic mark and the Registrar has granted the registration to the respondent without addressing the objection under Section 9 of the Trade Marks Act, 1999. Respondent capital foods contended that the Court did not have jurisdiction to hear the present petition, as a suit was pending between the parties before the District Judge, Nashik bearing Commercial Suit (Trade Mark) No. 2 of 2023 titled ‘Capital Foods v. Vimal Agro’, wherein the Petitioner itself admitted that the Bombay High Court alone would have jurisdiction to hear the cancellation proceedings.
According to the judge both these issues deserved consideration. In view of the prima facie finding of the Division Bench, the Court was not inclined to stay the impugned trademark registration for ‘SCHEZWAN CHUTNEY’. The issue of jurisdiction of Delhi high Court had to be considered first. So, the respondent capital foods is directed to file a reply on the issue of territorial jurisdiction of the Court within 4 weeks.
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Written by- K R Bhuvanashri
