The Delhi High Court has rejected the contention that rigour of Section 11(5) of the Trade Marks Act, 1999 would not dilute the applicability of Section 11(2) or 11(3) at the stage when cancellation of a registered mark is sought.
The Court in this regard believed that Section 11(5) does not apply differently at the stage when the application for registration of a mark is under consideration and when an application for rectification of the register and removal of a mark therefrom, under Section 57(2), has been made.
Sub-section 11(5) provides that a mark would not be refused registration under sub-sections (2) and (3) unless an objection, on one of the grounds envisaged by sub-section 11(2) or 11(3), is raised in an opposition proceeding by the proprietor of the earlier trademark (Petitioner here).
Observing that no opposition, as predicated on Section 11(2) or 11(3) was raised by the petitioner at the time when the Defendant’s mark was proceeding to registration, the Court in Bennet, Coleman and Company Limited v. VNOW Technologies Private Limited held that the petitioner cannot urge Section 11(2) or 11(3) as a ground to seek its cancellation or variation.