Delhi High Court
Landmark Crafts Limited vs Romil Gupta Trading As Sohan Lal Gupta & … on 25 February, 2026
Author: C. Hari Shankar
Bench: C. Hari Shankar
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 3 December 2025
Pronounced on: 25 February 2026
+ LPA 575/2025, CM APPL. 57191/2025, 57192/2025,
57194/2025 & 69956/2025
LANDMARK CRAFTS LIMITED .....Appellant
Through: Mr. J Sai Deepak. Sr. Advocate
with Ms. Stuti Wason, Mr. Vipin Wason, Mr.
Avinash Sharma and Mr. Hitesh Kumar,
Advocates.
versus
ROMIL GUPTA TRADING AS SOHAN LAL GUPTA &
ANR. .....Respondents
Through: Mr. Sanjeev Sindhwani, Sr.
Advocate with Mr. Rajat Bhardwaj, Mr.
Sandeep Khatri and Mr. Ujjwal Bhardwaj,
Advocates.
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
HON'BLE MR. JUSTICE OM PRAKASH SHUKLA
% JUDGMENT
25.02.2026
C. HARI SHANKAR, J.
A. The lis
1
1. The device mark was registered in favour of
Respondent 12 in Class 6 for self-tapping metal screws and self
1 “the subject mark” hereinafter
2 “the respondent” hereinafter
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drilling screws, vide Registration No. 3986970, under Section 23 of
the Trade Marks Act, 19993. The appellant applied, under Section 57
of the Act, for rectification of the register by removal of the subject
mark therefrom. By order dated 15 December 2022, the Deputy
Registrar of Trade Marks4 allowed the application and cancelled the
registration of the subject mark. Aggrieved thereby, the respondent
appealed to this Court by way of CA (Comm IPD-TM) 1/2023, under
Section 91 of the Act. The appeal stands allowed by a learned Single
Judge, vide judgment dated 14 May 2025. The appellant is in appeal,
under Clause X of the Letters Patent applicable to this Court.
B. Facts
2. The respondent filed Application No. 3986970, under Section
23 of the Act, for registration of the mark . User of the mark
was claimed from 27 February 2013. First Examination Report 5 dated
26 November 2018 was issued by the Registrar of Trade Marks6,
raising objections, to which the respondent replied on 13 December
2018. In the reply, too, the respondent claimed user of the mark since
2013. However, the mark to which the affidavit referred was the
subject mark , and not the mark for which the
respondent had sought registration.
3 “the Act” hereinafter
4 “the Dy RTM” hereinafter
5 “FER” hereinafter
6 “the RTM” hereinafter
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3. On 13 December 2018, the respondent applied for correction of
a clerical error in its Registration Application, as it claimed to have
inadvertently applied for the mark instead of . The
respondent, therefore, sought permission to amend its application.
4. The request was allowed, and the subject mark
proceeded to registration.
5. The appellant, thereafter, proceed to institute three actions
against the respondent, qua the subject mark .
6. On 24 July 2019, the appellant filed a petition7 under Section
578 of the Act before the RTM, seeking rectification of the register and
cancellation of the subject mark .
7. In September 2019, the appellant instituted CS (Comm)
117/20199 against the respondent, seeking an injunction against use of
the mark by the respondent. The suit is pending. An ex parte
7 “the rectification petition” hereinafter
8 57. Power to cancel or vary registration and to rectify the register.–
(1) On application made in the prescribed manner to the High Court or to the Registrar by
any person aggrieved, the Registrar or the High Court, as the case may be, may make such order as
it may think fit for cancelling or varying the registration of a trade mark on the ground of any
contravention, or failure to observe a condition entered on the register in relation thereto.
(2) Any person aggrieved by the absence or omission from the register of any entry, or by
any entry made in the register without sufficient cause, or by any entry wrongly remaining on the
register, or by any error or defect in any entry in the register, may apply in the prescribed manner to
the High Court or to the Registrar, and the Registrar or the High Court, as the case may be, may
make such order for making, expunging or varying the entry as it may think fit.
9 Landmark Crafts Pvt Ltd v. Sohan Lal Gupta
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ad interim injunction which was granted to the appellant on 7
September 2019, was vacated on 3 October 2019.
8. On 29 July 2020, the appellant filed a complaint before the
RTM, alleging irregularities in the grant of registration to the subject
mark. It was alleged, in the said complaint, that the
amendment, sought by the respondent to substitute the mark
for the mark in the Registration Application, ought not to have
been allowed, as it amounted to a substantial alteration, which was not
permissible under Rule 3710 of the Trade Marks Rules, 201711.
9. On 31 October 2022, the Examiner of Trade Marks12 issued the
following notice to the respondent:
"To Date: 31.10.2022
1. SH. ROMIL GUPTA
PLOT NO. 11, SECTOR-05, VAISHALI, GHAZIABAD (U.P.)
201010
2. SH. ROMIL GUPTA C/o M/S SOHAN LAL GUPTA
D-62, GROUND FLOOR, SECTOR-48, NOIDA, GAUTAM
BUDDHA NAGAR (U.P) 201301, INDIA
1037. Correction and amendment of application.–An applicant for registration of a trade mark may,
whether before or after acceptance of his application but before the registration of the trade mark, apply in
Form TM-M accompanied by the prescribed fee for the correction of any error in or in connection with his
application or any amendment of his application:
Provided, no such amendment shall be permitted which shall have the effect of substantially
altering the trade mark applied for or substitute a new specification of goods or services not included in the
application as filed.
11 “the Rules” hereinafter
12 “the Examiner” hereinafter
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This is to inform that a complaint dated 23.07.2020 received in this
office regarding improper registration if the trademark No.
3986970.
Prima facie, it appears that the trademark was applied as
with user claim since 27/02/2013, however, substantial
alteration of the trademark and subsequent registration thereof with
the same user claim was allowed contrary to the provisions of the
Trade Marks Act, 1999 and Rules framed thereunder.
Therefore, a notice under section 57 (4) of Trade Marks Act, 1999
is hereby issued as to why the registration of the aforesaid
trademark should not be cancelled being contrary to the provisions
of the law.
Hereby, an opportunity is given to you to make submissions, if
any, within 21 days hereof as also to be present for hearing on
17.11.2022 before the Registrar of Trade Marks at Trade Marks
Registry, IPO Building, Plot No. 32, Sector 14, Dwarka, Delhi
failing which appropriate orders shall be passed in the natter.
Yours faithfully
31.10.2022
Sd/-
Examiner of Trademark”
The notice, therefore, was issued to the respondent under Section
57(4)13 of the Act.
10. The Dy RTM issued notice to the parties, heard them, and
proceeded, vide order dated 15 December 2022, to allow the
appellant’s complaint and cancelled the registration granted to thesubject mark. In the said order, after reciting the facts, the Dy
RTM proceeds to observe and hold as under:
13 (4) The Registrar or the High Court, as the case may be, of its own motion, may, after giving notice in
the prescribed manner to the parties concerned and after giving them an opportunity of being heard, make any
order referred to in sub-section (1) or sub-section (2).
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“Thus, while the applicant initially applied the trademark as
for registration and claimed use thereof since 27/02/2013
and also filed an affidavit in respect of the trademark
stating that he is using the same since 27/02/2013, subsequently,
after the issuance of examination report, he filed a TM-M and
requested to amend the trademark from to and filed
his reply to the examination report stating that his trademark is
(Label) and he adopted (Label) in the year
27/02/2013 and that he has also filed an affidavit since using
(Label) from 27/02/2013 rendering his TM-M and
statements made in reply to the examination report as incongruous,
incorrect and wrong vis-à-vis his deposition in his affidavit of
earlier date 25/10/2018 and the contents of the impugned
application for registration.
However, as per the e-records, as per note sheet dated 31.12.2018,
the aforesaid request by the applicant/regd. proprietor on TM-M
for amendment of the impugned trademark from to to
was allowed and the impugned trademark was accordingly
amended.
Subsequently, as per e-records, as per note sheet dated 25.01.2019,
the impugned trademark as amended was allowed in to be
published as ‘advertised before acceptance’ in the Trade Marks
Journal No. 1887 dated 04/02/2019 with the same user date i.e.
27/02/2013 as initially stated in the impugned application without
considering the inconsistencies pointed out above and without
seeking any clarification or asking any explanation from the
applicant/regd. proprietor about the same as also without seeking a
fresh affidavit and documents in support of the said claim of use of
the impugned amended trade mark as per the provisions of
Rule 25 (2) of the Trade Marks Rules, 2017. The impugned
trademark as amended was accordingly registered vide registration
certificate No. 2209211 dated 23.06.2019 rendering its publication
in the Trade Marks Journal and its said entry on the Register of
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Trade Marks as erroneous, without sufficient cause and wrongly
remaining on the Register and liable to be set aside.
The Ld. Counsel for the regd. proprietor would submit that there
has been no substantial change in the impugned trademark
consequent to amendment. The request for amendment of the
impugned trademark on TM-M has been correctly allowed and the
mark has been correctly advertised and registered, therefore, the
notice under Section 57(4) must be cancelled/discharged. The Ld.
Counsel for the regd. Proprietor cited the decision of Hon’ble IPAB
in ORA/132/2014/TM/DEL M/s Palco’s Vs. M/s Palbis Quality
Confectioners to buttress his submissions.
However, in view of the facts and circumstances noted above and
analysis done, the above contentions of the Ld. Counsel for the
regd. proprietor do not hold good and are hereby rejected. As
regards the case law cited by the Ld: Counsel for the regd.
proprietor, it is noted that in the said case, the main objection was
that the placement of logo by the respondent No. 1 at the time of
fresh filing the application for registration is not as per the terms of
the family settlement. Subsequently, the respondent No. 1 agreed to
modify the mark strictly in terms of the family settlement and the
case was decided accordingly. Thus, the facts of said case are
completely different from the facts and circumstances in the
present matter, therefore, the same has no application in the present
matter.
Accordingly, the entry relating to the impugned trademark is
hereby cancelled and the registration certificate No. 2209211 is
also revoked forthwith. The advertisement of the impugned
amended trademark in the Trade Marks Journal No. 1887
is also cancelled and the impugned trademark application No.
3986970 is directed to be re-examined taking into account the
inconsistencies and irregularities pointed out as above.”
11. Aggrieved thereby, the respondent appealed to this Court vide
CA (Comm IPD-TM) 1/2023.
12. By the impugned judgment dated 14 May 2025, a learned
Single Judge of this Court has allowed the appeal.
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13. Ergo, the present LPA by the appellant.
C. The Impugned Judgment
14. The learned Single Judge has, in the impugned judgment, held
that the Dy RTM proceeded in violation of Rule 100(1)14 of the Rules,
which required him to give one month’s notice while proceeding
under Section 57(4). In cancelling the registration of the mark
granted to the respondent more than three years earlier without
conforming with the requirement of Rule 100, the learned Single
Judge also finds the Dy RTM to have acted in violation of the
principles of natural justice. Worse, notes the learned Single Judge, the
Dy RTM did not even wait for 21 days, as stipulated in the notice
dated 31 October 2022, and fixed hearing in the matter within 17 days
of the notice. The learned Single Judge holds that, as these
prescriptions are mandatory, the fact that no objection to this effect
was raised by the respondent before the Dy RTM cannot make a
difference.
15. The learned Single Judge further observes that, though the
notice dated 31 October 2022 was premised on the allegation, in the
complaint of the appellant, that the amendment sought in the
14 100. Rectification of the register by the Registrar of his own motion.–
(1) The Notice, which the Registrar is required to issue under sub-section (4) of Section 57,
shall be sent in writing to the registered proprietor, to each registered user, if any, and to any other
person who appears from the register to have any interest in the trade mark, and shall state the
grounds on which the Registrar proposes to rectify the register and shall also specify the time, not
being less than one month from the date of such notice, within which an application for a hearing
shall be made:
Provided that no notice shall be required to be sent to the registered proprietor, in case the
registered proprietor has requested or agreed in writing for cancellation of the registration; and
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application dated 13 December 2018 amounted to a substantial
alteration in the original application. Rather, notes the learned Single
Judge, the Dy RTM, in passing the order dated 15 December 2022,proceeded on the premise that the mark, post amendment, was
advertised without seeking any explanation or clarification from the
respondent, or calling on him to submit a fresh user affidavit. The
learned Single Judge notes that, in the notice dated 31 October 2022,
failure to furnish a fresh user affidavit after allowing amendment as
sought by the respondent on 13 December 2018, was not cited as aground on which the registration of the subject mark was
proposed to be cancelled. In fact, observes the learned Single Judge,
the Dy RTM ought to called upon the respondent to furnish a fresh
user affidavit, if he felt it essential.
16. On merits, the learned Single Judge has, in the following
passage from the impugned judgment, held that there was no“substantial alteration” of the mark originally applied for:
“16. The amendment carried out by the appellant in the present
case was that the two letters “S” and “D” were originally placed
horizontally in the applied mark, which were subsequently placed
vertically byway of the amendment. The subject mark continued to
have the same four letters “S”, “D”, “H” and “P” wherein the
letters “S” and “D” continued to be in smaller font as compared to
the letters “H” and “P”. By no stretch of imagination can this be
termed as “substantial alteration”.”
17. On the basis of these observations and findings, the learned
Single Judge has, in the impugned judgment, quashed and set aside
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the order dated 15 December 2022 passed by the Dy RTM. Even
while doing so, the learned Single Judge has entered a caveat to the
effect that the observations contained in the impugned judgment
would have no effect on the rectification petition filed by the
appellant.
18. The appellant is in appeal.
D. Rival Contentions
I. Submissions of Mr. J. Sai Deepak for the appellant
19. Arguing for the appellant, Mr. Sai Deepak, learned Senior
Counsel, submits that the original application filed by the respondent
on 30 October 2018 sought registration of the mark.
Significantly, the mark was a device mark, not a word mark. User was
claimed of 27 February 2013. He draws attention to the following
assertion, in the user affidavit accompanying the application:
“I state that we have been using the mark since 27/2/2013.”
The mark, to which the affidavit alludes, he pointed out, as reflected
in the affidavit itself, is . A user claim of 27 February 2013 for
a device mark , he submits, obviously cannot cover the device
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mark . The change of mark, in the application dated 13
December 2018, submits Mr. Sai Deepak, was “substantial” even on
this ground alone.
20. Mr. Sai Deepak submits that the application dated 13 December
2018 was cleverly strategized. He points out that, in the FER dated 26
November 2018, the device mark of one Surendra and the “HP”
word marks of the appellant were cited as rival marks, and that, in
order to get over it, the respondent flipped the “SD” from an erect
to a supine position.
21. Mr. Sai Deepak submits that, if Rule 37 of the Rules is read in
conjunction with Rule 25(1)15 thereof, it is manifest that it was
incumbent on the Dy RTM to call for a fresh user affidavit before
allowing the amendment as sought in the application dated 13
December 2018, as it amounted to a substantial alteration in the mark.
He relies, for this purpose, on the judgment of one of us, rendered
sitting singly, in MVS Eduexcellence Pvt Ltd v. Registrar of
Trademarks16. The failure to file a fresh user affidavit, he submits,
violated the mandate of the Rules.
22. Mr. Sai Deepak submits that the learned Single Judge has erred
in setting aside the order dated 15 December 2022 on the ground that
15 25. Statement of user in applications.–
(1) An application to register a trade mark shall, unless the trade mark is proposed to be used,
contain a statement of the period during which, and the person by whom it has been used in respect
of all the goods or services mentioned in the application.
16 (2023) 93 PTC 457
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proper procedure had not been followed. In fact, the respondent, he
submits, was served twice, firstly on 30 September 2022 and, on the
report that service had not been effected, again on 31 October 2022.
On the aspect of substantial alteration, Mr. Sai Deepak draws attention
to the following allegation, contained in para 9 of the complaint dated
23 July 2020:
“9. That, as is obvious from the above, registration of
trademark (device) , was obtained by M/S Sohan Lal
Gupta fraudulently as in the application for registration of
trademark dated 30/10/2018 all the alphabets S,D,H.P written in
the left to right direction however the size of the alphabets SD is
almost 1/4th of the size of the alphabets HP. Contrary to this, the
Applicant M/s Sohan Lal Gupta in the reply of Examination Report
to the Registrar of Trade Marks dated 13/12/2018 has mentionedthe device mark in such a way that the alphabets SD are
written in bottom to top direction and the alphabets HP is written in
left to right direction. Moreover, the size of the alphabets SD is
stretching up to the length of the alphabets HP which is completely
different from the mark depicted by the Applicant M/s Sohan Lal
Gupta in the application for registration of trademark. Hence, the
alteration in the mark applied for by the Applicant Mr. Romil
Gupta was substantial in nature within the meaning of Rule-37 of
the Trade Mark Rules, 2017 under which such a change was not
permissible.”
23. The Dy RTM, submits Mr. Sai Deepak, passed the order dated
15 December 2022 after hearing the parties and considering the
arguments advanced. No objection was taken, before him, to the effect
that he had proceeded in breach of the time periods stipulated in the
Rules. Adverting to the said order, Mr. Sai Deepak submits that no
documents, supporting the user affidavit, were filed by the respondent
at the time of the application dated 13 December 2018. As such, if the
impugned judgment were to be upheld, it would entirely absolve the
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respondent of the requirement of submitting an affidavit supporting its
user claim.
24. Mr. Sai Deepak submits that the period of one month stipulated
in Rule 100(1) of the Rules should be treated as directory unless
failure to comply therewith results in prejudice. By failing to raise
any objection in that regard during the hearing, Mr. Sai Deepak
submits that the respondent is now estopped from raising the ground.
25. Mr. Sai Deepak further submits that the learned Single Judge
was in error in observing that the aspect of failure to file a fresh user
affidavit was not mentioned in the notice dated 30 September 2022,
which specifically noted that the amendment was for a substantially
altered mark with the same user claim. The failure to file a user
affidavit and supporting documents, he submits, breached Rule 25(2).
26. Mr. Sai Deepak further submits that a mere visual comparison
of the and marks makes it clear that there was a
substantial alteration.
II. Submissions of Mr. Sanjeev Sindhwani
27. Mr. Sindhwani submits that the learned Single Judge has amply
protected the appellant’s rights in para 20 of the impugned judgment
by the clarification that the rectification petition filed by the appellant
would be decided uninfluenced by the impugned judgment. As such,
he submits, the appellant has suffered no prejudice.
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28. In so far as Mr. Sai Deepak’s contention that no affidavit of user
was filed by the respondent with the original application dated 30
October 2018 for registration of the mark is concerned, Mr.
Sindhwani submits that no such allegation was contained in the Show
Cause Notice dated 31 October 2022 issued to the respondent. He
further submits that the order dated 15 December 2022, having been
passed under Rule 37 of the Rules, was appealable under Section 91
thereof, but no appeal was preferred by the appellant.
29. Mr. Sindhwani submits that the respondent did submit a user
affidavit, dated 25 October 2018, with its original registration
application dated 30 October 2018. The FER was issued on 26
November 2018. The application for correction was submitted on 13
December 2018 along with the reply to the FER. It was specifically
pleaded, in both the correction application as well as in the reply to the
FER that the subject mark had been adopted by the Respondent on 27
February 2013. Both were accepted by the Dy RTM.
30. In this view of the matter, Mr. Sindhwani submits that there was
no reason for the Dy RTM, in the order dated 15 December 2022, to
observe that the statements made by the respondent in his reply to the
FER was incongruous, incorrect and wrong vis-à-vis what he had
stated in his earlier user affidavit dated 25 October 2018 and in his
registration application.
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31. Mr. Sindhwani further submits that there is no error in the
finding, of the learned Single Judge, that the order dated 15 December
2022 had been passed in breach of Rule 100(1) of the Rules. The
notice dated 30 September 2022, he submits, was never served on his
client, and the envelope, whereunder the notice was purported to have
been sent to him, bore the endorsement “no such person”. The
envelope was also part of the record. The notice which was served on
the respondent was dated 31 October 2022. There was, therefore, no
error in the finding of the learned Single Judge that the order dated 15
December 2022 not only breached Rule 100(1) of the Rules, but also
breached the period of 30 days stipulated in the notice itself, as
hearing was fixed 21 days after the notice was served on the
Respondent.
32. Mr. Sindhwani refutes Mr. Sai Deepak’s contention that the
period of one month stipulated in Rule 100(1) was directory. He
submits that Section 57(4) specifically required the Registrar to serve
notice “in the prescribed manner”. “Prescribed” is defined in Section
2(s) as prescribed by Rules made under the Act. As such, the period of
one month envisaged in Rule 100(1) of the Rules is to be regarded as
mandatory, applying the principle enunciated by the Privy Council in
Nazir Ahmed v. King Emperor17.
33. Mr. Sindhwani further submits that Rule 37 enabled an
applicant, who had applied for registration of a trade mark, to seek
correction in the application. It did not envisage submission of any
fresh user affidavit.
17 AIR 1936 PC 253
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34. Adverting to the order dated 15 December 2022, passed by the
Dy RTM, Mr. Sindhwani submits that the observation that the
application, as amended, “was allowed to be published in the Trade
Marks Journal with the same user date, i.e. 27/02/2013 as initially
stated in the impugned application without considering the
inconsistencies pointed out above and without seeking any
clarification or asking any explanation from the applicant… is also
without seeking a fresh affidavit and documents in support of the said
claim of use of the impugned amended trademark” travelled beyond
the notice dated 31 October 2022 served on the Respondent. There is,
in the said order, he points out, no finding of substantial alteration.
35. In fact, submits Mr. Sindhwani, the order dated 15 December
2022 was fundamentally unreasoned. Reasoning, supporting the
conclusion in an order, he submits, is a necessity.
36. In any case, reiterates Mr. Sindhwani, the appellant stands
amply protected by para 20 of the impugned judgment and, therefore,
there was no cause to prefer the present appeal.
III. Submissions of Mr. Sai Deepak in rejoinder
37. Mr. Sai Deepak submits, in rejoinder, that Rule 57(4) is
independent of Rule 57(1) and that suo motu power can also be
exercised at the instance of a third party. He, however, fairly conceded
that there was no compliance with the requirement of one month’s
notice envisaged in Rule 100(1) of the Rules, and that he had no
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objection to the appellant’s complaint dated 29 July 2020 being
remanded to the Dy RTM for consideration afresh after giving 100
days’ notice to the respondent. His objection was that the learned
Single Judge proceeded to justify the order dated 15 December 2022
on merits.
38. On merits, Mr. Sai Deepak submits that the finding, of the
learned Single Judge, that there had been no substantial alteration
between the amended mark and the mark for which registration have
originally been sought, was myopic. He submits, without prejudice,
that, if, for the sake of argument, it were to be presumed that there was
no substantial alteration, the consequence would be that the original
FER would revive. This aspect has been ignored by the learned Single
Judge. If, on the other hand, there is a substantial alteration, then Rule
25 would require the submission of a fresh user affidavit by the
Respondent. This was an aspect which was also reflected in the show
cause notice dated 31 October 2022 which, inter alia, noted that the
amendment had been allowed with the same date of user.
39. Mr. Sai Deepak finally places reliance on Clause 3.2.7 of the
Manual of Trade Marks Practice & Procedure of the Trade Marks
Office, which reads as under:
“Attending to request made in Form TM-16 for change in the
application detailsA correction of any error in the application or any amendment in
the application is permitted by the Trade Marks Act.
An applicant for registration of a trade mark may, before the
registration of the mark, apply in Form TM-16 accompanied by the
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prescribed fee for the correction of any error in his application or
any amendment of his application.
This provision is made for correction of mere clerical errors in the
application. No correction shall therefore be allowed which seeks
substantial alteration in the application as filed. The substantial
amendment in the trademark, proprietor details. specification of
goods/services (except deletion of some of the existing items,
statement as to the use of mark shall not be permitted in the name
of correction.
However request for amendment as to change in the proprietorship
of the mark on the basis of valid assignment or transmission;
amendment in address of the applicant or in the applicant address
for service; deletion confinement, clarification of specification of
goods/services, confinement/limitation in the area of sale of
goods/rendering of service, division of multiclass application etc.
can be allowed.”
E. Analysis
40. The Dy RTM rejected the respondent’s application dated 13
December 2018, preferred under Rule 37 of the Rules. The learned
Single Judge set aside the order, and held the application dated 13
December 2018 to be justified. We are required to examine whether
any scope exists, in exercise of our Letters Patent jurisdiction, to
interfere with the decision of the learned Single Judge.
41. Mr. Sai Deepak, during hearing, was agreeable to a remand of
the notice dated 31 October 2022 to the Dy RTM for decision afresh,
as Rule 100(1) of the Rules had been breached, though he asserts that
the provision is not mandatory.
42. The plea that the stipulation of one month’s notice, as stipulated
in Rule 100(1), has, to our mind, necessarily to be regarded as
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mandatory. Mr. Sai Deepak submits that such a provision can be
regarded as mandatory only if failure to comply with it results in
prejudice. We fail to understand what greater prejudice could result
than cancellation of the registration of the trade mark registered in
favour of the respondent.
43. Besides, the plea that the provision is not mandatory absent
evidence of prejudice has, to our mind, no legs to stand on. Mr.
Sindhwani correctly invokes the trite principle, redolent from Taylor v.
Taylor18 through Nazir Ahmed through a veritable plethora of
judgments of the Supreme Court, till as late as Independent Sugar
Corpn. Ltd. v. Hindustan National Gas & Industries Ltd.19, that,
when the statute requires a particular act to be done in a particular
manner, that act has to be done in that manner alone, or not done at all,
all other modes of performance being necessarily forbidden. The
prescription of one month’s notice in Rule 100(1) is, therefore, clearly
mandatory, and the decision dated 15 December 2022 was, therefore,
liable to be set aside even on the ground of having breached the said
stipulation.
44. We are not prepared to countenance the submission, of Mr. Sai
Deepak, that, no objection to that effect having been raised by the
respondent at the stage of hearing by the Dy RTM, the respondent was
estopped from doing so before this Court. The requirement of
compliance with the mandate of Rule 100(1) cannot be subject to any
principle of estoppel.
18 (1875) LR 1 Ch D 426
19 (2025) 5 SCC 209
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45. What remains, then, is the issue of whether the learned Single
Judge was correct in allowing the respondent’s application dated 13
December 2018 on merits.
46. There was, clearly, no legal embargo on the learned Single
Judge doing so. Having held the Dy RTM to have contravened Rule
100(1), it was open to the learned Single Judge either to remand the
matter to the Dy RTM for reconsideration, or to consider the matter on
merits. If he chose the latter option, thereby avoiding another stage of
litigation, no fault can be found therewith. It is settled that, if the
material on the basis of which the Court can arrive at a decision on
merits is available with it, it should ordinarily avoid remanding the
matter for a decision de novo.20
47. We, therefore, are required to examine whether, within the
scope of letters patent jurisdiction, there exists any scope to interfere
with the decision of the learned Single Judge to set aside the order
dated 15 December 2022 on merits.
48. The scope of an LPA stands tellingly underscored in the
following passage from Baddula Lakshmaiah v. Sri Anjaneya Swami
Temple21:
“A letters patent appeal as permitted under the letters patent is
normally an intra-Court appeal whereunder Letters Patent Bench,
sitting as a Court of Correction, corrects its own orders in exercise20 Refer Arvind Kumar Jaiswal v. Devendra Prasad Jaiswal Varun, 2023 SCC OnLine SC 146,
Shivakumar v. Sharanabasappa, (2021) 11 SCC 277, and Bachahan Devi v. Nagar Nigam, Gorakhpur,
(2008) 12 SCC 372
21 (1996) 3 SCC 52
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of the same jurisdiction as was vested in the single Bench. Such is
not an appeal against an order of a subordinate Court. In such
appellate jurisdiction the High Court exercises the powers of a
Court of Error. So understood, the appellate power under the
Letters Patent is quite distinct, in contrast to what is ordinarily
understood in procedural language”.
49. A coordinate bench of this Court has recently, in Sawhney
Rubber Industries v. Workmen22, observed thus:
“17. Coming to the instant appeal, the scope of interference by
this Court is confined to examining whether the learned Single
Judge has committed any error of law in declining to interfere with
the Award of the learned Industrial Tribunal in favour of the
respondent workmen. This Court’s jurisdiction in a Letters Patent
Appeal is limited to rectifying errors of law and does not extend to
re-appreciation of evidence or substituting its own findings for
those of the learned Industrial Tribunal, unless the findings are
perverse or lack any evidentiary basis.”
This view was echoed, even more recently, by another Division Bench
of this Court in Punjab & Sind Bank v. K.S. Sethi23.
50. The learned Single Judge has returned a finding, on merits, in
para 16 of the impugned judgment (reproduced supra) that the
substitution of the mark with the mark did not involve
any “substantial alteration”. This finding is purely subjective in nature.
51. Rule 37 of the Rules allows an applicant, seeking registration of
a trademark, to apply for correction of any error in connection with his
application or any amendment of his application. The words “any
error” are wide and compendious. Any mistake which might have
22 2025 SCC OnLine Del 7784
23 Judgment dated 11 August 2025 in LPA 968/2013 [Punjab & Sind Bank v. K.S. Sethi]
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been committed by the applicant while applying for registration is
encompassed within it.
52. The word “amendment”, unqualified as it is, is also
compendious, though perhaps to a lesser degree than the expression
“error”. Wharton’s Law Lexicon defines “amendment” as “a
correction of any errors in the pleadings in actions, suits or
prosecutions”.
53. Viewed de hors the proviso, therefore, Rule 37, by use of the
words “any error” and “any amendment”, confer vast latitude to the
applicant seeking registration of a trade mark to apply for correction.
54. The proviso to Rule 37, however, restricts its scope, but to an
extent. It states, inter alia, that no amendment shall be permitted
which shall have the effect of substantially altering the trademark
applied for. It does not, however, provide any yardstick by which to
gauge whether an alteration of a trade mark, applied for, is, or is not,
“substantial”.
55. The Supreme Court, in Santosh Hazari v. Purushottam
Tiwari24, has defined “substantial”, albeit in the context of the
expression “substantial question of law”, as meaning “having
substance, essential, real, of sound worth, important or considerable”.
There is no reason why this same understanding of the expression
“substantial” should not inform the interpretation of the expression as
used in the proviso to Rule 37.
24 (2001) 3 SCC 179
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56. In any event, the legislature has clearly used the expression
“substantial” deliberately, and we have, therefore, to accord it due
respect. Not every alteration in the trade mark applied for, as sought
under Rule 37, is impermissible; it is only substantial alteration that is
proscribed.
57. We do not find, in Rule 37, any requirement of submitting any
fresh affidavit of user. We are clear in our mind that a requirement,
which is not to be found in the statute, cannot be imposed by judicial
fiat. If the alternation in the mark is substantial, the very application
for correction under Rule 37 would be liable to be rejected. The
question of a fresh affidavit of user, then, becomes redundant. If, on
the other hand, the alteration is not substantial, the claim of user of the
original mark would obviously apply, equally, to the altered mark, as
the alteration is insubstantial in nature.
58. Mr. Sai Deepak’s submission that the respondent was required
to submit a fresh affidavit of user, by juxtaposing Rules 25 and 37
cannot, therefore, be accepted. This submission, to our mind,
overlooks the distinction between a substantial, and an insubstantial,
alteration of the mark earlier applied for. The proviso to Rule 37,
when read with the main part of the provision, would make matters
clear. When read as a whole (including the proviso), Rule 37 allows
correction of an error which includes an alteration of the mark
applied for, which is not substantial. Advisedly, therefore, the
legislature did not deem it necessary to call on the Rule 37 applicant to
submit a fresh affidavit of user.
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59. Mr. Sai Deepak’s submission that the initial user affidavit,
which applied to the mark, would not cover the would
obviously not merit acceptance, once it is held that the respondent had
erroneously applied for registration of the former mark instead of the
latter, and that there was no substantial alteration of the mark. In such
circumstances, the claim of user of the mark – which was
erroneously applied for – would obviously also cover the “corrected”
mark.
60. Of course, it would always be open to the appellant to question
the correctness of the claim of user of the respondent in its
rectification proceedings. We express no view thereon.
61. The submission of Mr. Sai Deepak that the respondent was
required to submit a fresh user affidavit cannot, therefore, be accepted.
62. All that remains, then, is to examine whether the view, of the
learned Single Judge, that the substitution of , with , as
the mark of which registration was being sought, involved no
“substantial alteration”. The learned Single Judge has arrived at a
conclusion that it does not, after a meticulous comparison of the two
marks. In the absence of any yardstick, otherwise prescribed,
regarding the manner in which the stipulation of “substantial
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alteration” is to be assessed, and applying the understanding of the
expression “substantial” as defined by the Supreme Court in Santosh
Hazari, the approach of the learned Single Judge commends
deference. The view being purely subjective, we see no reason to
differ therewith, within the limited scope of letters patent jurisdiction.
Conclusion
63. We, therefore, see no reason to differ with the view expressed
by the learned Single Judge.
64. The appeal is dismissed.
65. We, however, reiterate the caveat, entered by the learned Single
Judge, that the views and opinions expressed herein, or in the
impugned judgment of the learned Single Judge, would not impact,
influence or affect the adjudication of the rectification petition
preferred by the appellant, or any other cognate proceedings between
them.
C. HARI SHANKAR, J.
OM PRAKASH SHUKLA, J.
FEBRUARY 25, 2026
dsn
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