Allowed

Kaveri Hotels Private Limited - Presently Known as Chouki v. Intellectual Property Appellate Board

Gujarat HC1 Jul 2021LPA/67/2015

Case brief

AI extract

What is this about?

This Letters Patent Appeal challenged orders regarding a trademark dispute. The High Court held that stamp duty admissibility was a vital preliminary issue that the Registrar of Trade Marks failed to address. The appeal was allowed, lower orders set aside, and the matter remanded to the Registrar for a fresh hearing. No costs awarded.

What did the court decide?

Appeal allowed; orders of the learned Single Judge, Intellectual Property Appellate Board, and Registrar of Trade Marks set aside; matter restored to the Registrar for a fresh hearing after deciding t

Kaveri Hotels Private Limited - Presently Known as… — Intellectual Property | Gujarat HC (2021)

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C/LPA/67/2015 ORDER DATED: 01/07/2021 KAVERI HOTELS PRIVATE LIMITED - PRESENTLY KNOWN AS CHOUKI

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vs. INTELLECTUAL PROPERTY APPELLATE BOARD & 2 OTHERS

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/LETTERS PATENT APPEAL NO. 67 of 2015

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R/SPECIAL CIVIL APPLICATION NO. 13630 of 2013

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KAVERI HOTELS PRIVATE LIMITED - PRESENTLY KNOWN AS CHOUKI Versus INTELLECTUAL PROPERTY APPELLATE BOARD & 2 other(s)

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Appearance:

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MR S.N. SOPARKAR, Senior Counsel assisted by

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MR Y.J. JASANI, Counsel with

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MR PRATIK Y JASANI, Counsel for the Appellant

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MR KSHITIJ M AMIN(7572) for the Respondent(s) No. 1,3

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MR S.K. BANSAL, Counsel assisted by

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MR HARSHADRAY A DAVE(3461) for the Respondent(s) No. 2

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CORAM: HONOURABLE DR. JUSTICE VINEET KOTHARI

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and

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HONOURABLE MR. JUSTICE B.N. KARIA

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Date : 01/07/2021 ORAL ORDER

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(PER : HONOURABLE DR. JUSTICE VINEET KOTHARI)

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This Letters Patent Appeal is directed against the order dated

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06.01.2015 passed by the learned Single Judge dismissing Special

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Civil Application No. 13630 of 2013 – Kaveri Hotels Private

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Limited [Presently known as Chouki Dhani Motels (Gujarat)

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Private Limited] vs. Intellectual Property Appellate Board and

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Page 1 of 6

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C/LPA/67/2015 ORDER DATED: 01/07/2021 KAVERI HOTELS PRIVATE LIMITED - PRESENTLY KNOWN AS CHOUKI

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vs. INTELLECTUAL PROPERTY APPELLATE BOARD & 2 OTHERS

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Others .

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The short issue of which the arguments advanced by Mr.S.N. Soparkar, learned Senior Counsel for the Appellant – Kaveri Hotels Private Limited [Presently known as Chouki Dhani Motels (Gujarat) Private Limited] and Mr.S.K. Bansal, learned Counsel for Respondent No.2 – Pink Pearl Leisure & Amusement Private Limited (Presently known as M/s. Chokhi Dhani Resorts Private Limited) , is whether the Agreement dated 08.04.2004 between Mr. Gulraj Vasvani, Proprietor of M/s. Chokhi Dhani (Rajasthani Restaurant), Jaipur and Chokhi Dhani Resort, Jaipur (the Vendor) and M/s. Pink Pearl Leisure and Amusement Private Limited, Jaipur (the Purchaser) reduced into writing on a NonJudicial Stamp Paper of Rs.100 requires appropriate stamp duty to be affixed on the said Agreement in order to become an admissible evidence before the Registrar of Trade Marks – Respondent No.3 before us, Ahmedabad and therefore, on that basis whether the dispute between the parties on the Trade Mark ‘Chokhi Dhani’ should be registered in favour of the Appellant or in favour of the Respondent is the dispute. The question of stamp duty does not

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Page 2 of 6

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C/LPA/67/2015 ORDER DATED: 01/07/2021 KAVERI HOTELS PRIVATE LIMITED - PRESENTLY KNOWN AS CHOUKI

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vs. INTELLECTUAL PROPERTY APPELLATE BOARD & 2 OTHERS

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appear to have been decided so far by the Authorities below though, our attention was drawn towards para 10 of the order passed by the Intellectual Property Appellate Board on 15.04.2013 by learned Senior Counsel Mr. S.N. Soparkar. The said para 10 only says as follows:

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“10. In the instant case on hand, the amendment is only to amend/change the name of the applicant. In our considered view, we do not think, there is any material alteration in the impugned trade mark.”

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This Appeal does not obviously touch upon the question of stamp duty. Admittedly, the Lower Authority – Registrar of Trade Marks whose orders the said appeal is decided viz. in the order dated 29.01.2020 also this question does not appear to have been raised or decided by the Registrar of Trade Marks. The dispute also has arisen upto the present Appellant before us on the ground that whether the Assignee or Purchaser under the said Agreement dated 08.04.2004 is entitled to make any application for seeking Trade Mark Registration or not and whether the amendment is only to amend/change the name from the Vendor to the name of Assignee or Purchaser – M/s. Pink Pearl Leisure and Amusement Private Limited, Jaipur was

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Page 3 of 6

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C/LPA/67/2015 ORDER DATED: 01/07/2021 KAVERI HOTELS PRIVATE LIMITED - PRESENTLY KNOWN AS CHOUKI

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vs. INTELLECTUAL PROPERTY APPELLATE BOARD & 2 OTHERS

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sustainable in law or not and further such Assignee can press for cancellation of registration of Trade mark in favour of the Appellant.

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In the absence of two Authorities under the Trade Marks Act

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deciding the said issue, the learned Single Judge could not touch upon the said issue of stamp duty and therefore, we do not find any findings or opinion on the said issue.

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However, the said issue of stamp duty on the Agreement in question, in our opinion, was required to be dealt with by the Registrar of Trade Marks as a Preliminary Issue, because the admissibility of the evidence in form of the said Agreement dated 08.04.2004 would depend upon the question of the stamp duty or the value of the stamp paper, on which the said Agreement is written and is executed. The subsequent action on the Application or oppositions may depend upon the admissibility of the said Document itself.

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Therefore, the said issue ought to have been decided by the learned Registrar of Trade marks. Even if it is assumed for the sake of argument, the same is not properly raised before the Registrar of

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Page 4 of 6

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C/LPA/67/2015 ORDER DATED: 01/07/2021 KAVERI HOTELS PRIVATE LIMITED - PRESENTLY KNOWN AS CHOUKI

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vs. INTELLECTUAL PROPERTY APPELLATE BOARD & 2 OTHERS

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Trade Marks and was raised before the Intellectual Property Appellate Board for the first time as contended by Mr.S.K. Bansal, learned Counsel, we are of the opinion that it will not matter much as the said objection as to stamp duty deserves to be decided by the Registrar of Trade Marks before proceeding further in the matter.

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Therefore, we are of the opinion that all the orders passed by Authorities below cannot be sustained at this stage and the entire matter has to be remanded back to the Registrar of Trade Marks – Respondent No.3 to decide the case whole again de novo after deciding the said question of stamp duty on the Agreement dated 08.04.2004 as a preliminary issue first after giving an opportunity of hearing to both sides.

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In view of this, the present Letters Patent Appeal is allowed and setting aside the order of the learned Single Judge dated 06.01.2015 as well as the order of the Intellectual Property Appellate Board dated 15.04.2013 and the order of the Registrar of Trade Marks dated 29.01.2010 , the matter is restored back to the Registrar of Trade Marks and he is directed to pass appropriate fresh orders

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Page 5 of 6

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C/LPA/67/2015 ORDER DATED: 01/07/2021 KAVERI HOTELS PRIVATE LIMITED - PRESENTLY KNOWN AS CHOUKI

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vs. INTELLECTUAL PROPERTY APPELLATE BOARD & 2 OTHERS

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after giving reasonable opportunity of hearing to the concerned parties afresh on all the issues including the aforesaid Preliminary Issue.

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The parties without any further notice in this regard may appear before the Registrar of Trade Marks in the first instance on 02.08.2021, Monday at 11.00 a.m. and a period of Eight Weeks is allowed to the Registrar of Trade Marks to decide the matter afresh in accordance with law.

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With these observations, this Letters Patent Appeal is disposed of. No costs.

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(DR. VINEET KOTHARI,J)

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(B.N. KARIA, J)

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Bharat

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Kaveri Hotels Private Limited - Presently Known as Chouki v. Intellectual Property Appellate Board

Case brief

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Kaveri Hotels Private Limited - Presently Known as Chouki v. Intellectual Property Appellate Board

Case brief

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