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The Bombay HC bench consisting RM Borde and RG Ketkar in a recent case issued an order allowing the plea of the petitioners to prohibit the removal of their registered trademark ‘KLITOLIN’ from the record of the register of trademarks without giving due notice as mandated under the section 25(3) of the trademarks act, 1999.
The petitioners filed for a writ of prohibition against the registrar of trademarks and his subordinate officers to prevent them from removing of the name ’KLITOLIN’ from the register of trademarks maintained by the respondent. The petitioner is a private limited company registered under the companies act, 1956 engaged in the business of cleaning and washing preparations under the name of ‘KLITOLIN’. The petitioners had failed to file an application for renewal due in 2009. The petitioners had argued that since the respondent has also not issued an O-3 notice under the section 25(3) of the registered trademarks act, 1999, they ought to be pardoned for their non-filing of renewal application and allowed the renewal of their trademark.
With reference to the Cipla Limited case decided in 2013, the petitioners argued that there is a mandatory need to issue an O-3 notice under the act failing which the registered trademark cannot be subject to non-renewal and removal altogether. The Court held that rule 68 which allows the removal of the registered trademark name on the non-payment of fees and non-filing of the renewal application but it should be read in compliance with the rule 67 which requires the issuance of notice by the registrar of trademarks. Both rules should be read together to give effect to the section 25(3) which necessitates the issuing of notice at the expiration of time period for renewal.
On this note the court allowed the petition for the issue of a writ of prohibition against the registrar of trademarks.
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