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July 26, 2018

Cancellation of registered mark for unproved use claim not curable by post-dating

In the matter of Vivek Kochher & Ors. v. KYK Corporation Limited and Ors. [2018(74) PTC 120 (Del)], the Delhi High Court decided (on November 3, 2017) a writ petition against IPAB’s order of allowing rectification of trademark registration for mark KYK.

KYK Corporation had sought rectification of KYK before the IPAB on the grounds of identity of marks and a false prior use claim. The IPAB order had noted that while the Registrant had claimed prior use since 1996 (for class 12 goods) and since 2000 (for class 7 goods), it had failed to produce any evidence prior to 2005.

The Court examined whether the IPAB’s finding that there was no evidence prior to 2005 was ex facie erroneous, as alleged in the Writ Petition.

On this, the Court observed that “…none of the said invoices are prior to the year 2005 and, therefore, there was no evidence on record to show any invoice relating to the use of the impugned mark by KYK International…Thus, the finding of the IPAB that ‘there is no evidence prior to 2005’ is correct…

The issue before the Court then was whether inability to prove the prior use date claimed in a trademark registration renders the registration invalid ab initio.

The Court appears to have decided in the affirmative, ultimately dismissing the petition, holding that “…conclusion of IPAB that the petitioners were unable to establish the use … warranting a rectification of the registered trademark cannot be faulted.”

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