"A mark clearly registered in the country of union shall be regarded as independent of
the marks registered in the other countries of the union including the country of
origin"
Learned Counsel submitted that Article 6 (1) of the Paris Convention for the protection of
industrial property provides that;
"The conditions for the filing and registration of Trademarks are to be
determined in each country of the union by the domestic legislation."
Learned Counsel further submitted that the Applicant's Certificate of Registration of the
Trademark was issued in compliance with Section 16 of the Trademarks Act, 2010.
The Applicant‟s Counsel submitted that the Respondent's Defence for infringing the
Applicant's Trademark on grounds that the Applicant has no right of usage of the said
Trademark, because the Applicant has no authority from the alleged manufacturer of
the said goods holds no water. In the Respondent's Defence at Page 2 of the WSD and
in the Supplementary Affidavit by Muqtar Ali Zafar deposed to on 9th December,
2016, the Respondent states that the manufacturer of the goods is Bingling Enterprises
Limited whose sole distributor is JIANSGU Ouman Textile Technology Co. Ltd.
However, Annexure C to the WSD, which is an authority letter to the Respondent
states that JIANSGU Ouman Textile Technology Co. ltd are the manufacturers of the
goods, which fact is confirmed in Paragraph 3 of the Affidavit in Reply by Muqtar Ali
Zafar deposed to on 30th November, 2016. In another Supplementary Affidavit 2 by
Muqtar Ali Zafar deposed to on 1st March, 2017 in paragraphs 4 and 9, the Respondent
states in Paragraph 4 that the owner of the said mark and the manufacturer of the goods
is Luoyang City Guanlinlide Blanket Factory.
Counsel submitted that once registration has been completed in accordance with the
Trademarks Act 2010 and the Applicant's Trademark has not been deregistered by
Court, the Applicant has exclusive rights to the said Trademark and any unauthorized
usage amounts to infringement. The confusing and suspicious disclosure above by the
Respondent as to the different owners of the mark is irrelevant. Counsel further
submitted that the Certificate of Registration issued to the Applicant remains valid
unless deregistered by Court. Suffice to note is the Application of the said Trademark
by the Applicant which was never challenged by the Respondent or the alleged
manufacturers. He submitted that instead the Respondent avers in the supplementary
Affidavit 2 deposed on 1st March, 2017 at paragraph 2 that, the Applicant did not follow
procedures of the law including gazetting. However, no evidence was attached such as
a letter from the Registrar of Trademarks to confirm the source of the allegation. The
Respondent save from stating that it tried to register the said mark on behalf of
Bingling Enterprises Limited under paragraph 7 of the supplementary Affidavit in reply
by Muqtar Ali Zafar, has never adduced further evidence on the said Application. This
means that the said application failed after opposition by the Applicant vide Annexure
D to the said affidavit.
Decision of Hon. Mr. Justice Christopher Madrama
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