Madras High Court
M/S.Sree Lakshmi Balaji Industries vs Sri Lakshmi Venkateswara Rice … on 11 March, 2026
Author: Senthilkumar Ramamoorthy
Bench: Senthilkumar Ramamoorthy
2026:MHC:1056
(T)OP(TM) No. 234 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 11.03.2026
CORAM
THE HON'BLE MR JUSTICE SENTHILKUMAR RAMAMOORTHY
(T)OP(TM) No. 234 of 2023
M/s.Sree Lakshmi Balaji Industries
Formerly Written as Sri Laxmi Balaji Industries
(earlier as Sri Raghavendra Agro Industries)
Navali Road, Kartagi 583 229,
Gangavati Taluk, Koppal District,
Karnataka, India
..Petitioner
Vs
1. Sri Lakshmi Venkateswara Rice Industries
Sindhanur Road, Siruguppa 583 121,
Bellary District, Karnataka State, India.
2. The Registrar of Trademarks
Office of the Trademarks Registry,
Chennai 600 032.
..Respondents
Petition filed under Sections 47 / 57 / 125 of the Trade Marks
Act, 1999 praying to remove/rectify/expunge the entry pertaining to
impugned Trade Mark Ayyappan Brand under No.899178 in class 30 from
the Register.
For Petitioner Mr.R.Sathish Kumar
for Mr.Ramji.G
For Respondents: Mr.B. Karthick for R1
Mr. Rajesh Vivekanandan,
Deputy Solicitor General for R2
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ORDER
The first respondent herein had filed O.S.No.3 of 2012 on the file of
the District Court, Bellary for remedies in respect of alleged infringement
of its registered trade mark by use of a pictorial representation of Lord
Ayyappa by the petitioner. The rival marks are applied in relation to rice
and related products. During the pendency of said suit, the petitioner
lodged this petition before the erstwhile Intellectual Property Appellate
Board on or about 01.04.2016 under Sections 47 and 57 of The Trade
Marks Act, 1999 (47 of 1999) [hereinafter referred to as TM Act].
2. The contention of Mr.R.Sathish Kumar, learned counsel for the
petitioner in support of the request for rectification may be summarised
as under:
2.1 The user date is recorded as 14.01.1999 in the application for
registration, whereas it is recorded as 13.07.1992 in the advertisement
published in the Trade Mark Journal No.1382 on 16.12.2007. The first
respondent has failed to provide any evidence that an application for
amendment of the user date was filed and accepted by the Registrar of
Trade marks. The Registrar of Trade Marks also could not provide any
evidence for the acceptance of an application for amendment of the user
date. Therefore, there is a contravention of the statute warranting
rectification under Section 57(1) of the TM Act;
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2.2 The trade mark as registered is depicted at page No.34 of the
paper book of the petitioner. When the trade mark as registered is
compared with the trade mark as used, there are significant differences.
The first respondent has failed to provide any evidence for use of the
trade mark as registered. In effect, the first respondent has not used the
trade mark as registered. Consequently, the first respondent’s mark is
liable to be removed for non-use under Section 47 of the TM Act;
2.3 Based on a complaint lodged under Section 107 of the TM Act,
the Registrar of Trade Marks concluded that the first respondent had
misrepresented that it is using registered trade mark while using the
mark shown in the invoices relied on by the first respondent. The
standard applied while deciding an application under Section 107 is akin
to that prescribed in Section 55;
2.4 Form TM-16 does not necessarily relate to alteration of date of
use. Merely by asserting that the application in Form TM-16 was filed, the
first respondent cannot establish that the user date was duly modified.
3. The contentions of learned counsel for the first respondent may
be summarised as under:
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(T)OP(TM) No. 234 of 20233.1 The Registrar of Trade Marks will not modify the user date
unless an application for amendment of user date had been accepted;
3.2 Invoices issued from 10.06.1993 have been filed and these
invoices support the user claim from 13.07.1992;
3.3 While the pictorial depiction of Lord Ayyappa in the invoices
does not exactly match the depiction in the registered trade mark, the
use of the trade mark by the first respondent was bonafide and the
alteration does not substantially alter the identity. Section 55 of the TM
Act comes to the aid of the first respondent and no case is made out for
rectification under Section 47;
3.4 In support of these contentions, following judgments were relied
upon:
(i) Mangalore Ganesh Beedi Works vs. District Judge,
Munsif City and Others, MANU/UP/0680/2005, particularly
paragraph Nos.20 and 23 thereof;
(ii) Lupin Limited Vs. Eris Lifesciences Pvt. Ltd. and
Ors, MANU/MH/3536/2015, particularly paragraph No.15.2
thereof;
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(iii) Radico Khaitan Limited vs. Brima Sagar
Maharashtra Distelleries Ltd., MANU/DE/3230/2014,
particularly paragraph No.36 thereof.
4. In view of the rival contentions, the first question that falls for
consideration is whether the impugned mark is liable to be removed from
the register on account of the discrepancy in user date between the
application and the advertisement. As recorded earlier, the user date
mentioned in the application is 14.01.1999, whereas the user date
mentioned in the advertisement is 13.07.1992. The materials on record
do not contain an application for amendment or any order accepting the
request for amendment. Learned counsel for the Registrar of Trade Marks
submits that all relevant records were destroyed and that the Registrar is
unable to respond on the basis of records as to whether an application for
amendment was filed, and if so, whether such application was allowed. In
these circumstances, it becomes necessary to examine the evidence of
use of the mark.
5. The first respondent has filed invoices issued between
10.06.1993 and 03.10.2015. The invoice dated 10.06.1993 contains a
pictorial depiction of Lord Ayyappa. The invoice has been issued by Sri
Lakshmi Venkateswara Rice Industries and this is clearly discernible from
the invoice.
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6. The trade mark, as registered, and marks, as used on invoices
dated 10.06.1993 and 28.10.1999, are scanned and reproduced below:
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7. Said registered trade mark contains three elements. The said
elements are as follows:
(i) Pictorial depiction of Lord Ayyappa;
(ii) The trading name Sri Lakshmi Venkateswara Rice
Industries, Siruguppa written in a ring surrounding the
pictorial device;
(iii) Ayyappan Brand written in words in a rectangular
box beneath the ring.
8. Out of these three elements, only the pictorial depiction finds
place as a mark on the invoices issued between 10.06.1993 and
09.04.1998. As recorded earlier, the invoices clearly indicate, however,
that they are being issued by Sri Lakshmi Venkateswara Rice Industries.
This leaves no room for confusion with regard to identity or source.
Invoices issued later, from about 28.10.1999, also contain the words
‘Ayyappan Brand’ beneath the pictorial device of Lord Ayyappa.
9. As contended by learned counsel for the petitioner, there is
variation in the pictorial depiction of Lord Ayyappa when the mark as
registered is compared with the mark as used in the invoices. This leads
to the question whether the mark is liable to be rectified by exercising the
power under Section 57(1) or 57(2) of the TM Act. The Registrar of Trade
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Marks does not state that no application was received for amendment
from the first respondent. Instead, as recorded earlier, the stand of the
Registrar of Trade Marks is that records are unavailable and that records
were destroyed. While it is not possible to conclude on the basis of
records that an application for amendment was made with regard to user
date and that such application was accepted, it cannot equally be
concluded that the first respondent indulged in misrepresentation or fraud
with regard to the change of the user date. In these facts and
circumstances, I conclude that the alleged contravention in relation to the
registration does not constitute a valid reason to direct removal of the
mark by exercising power under Section 57. The next aspect that falls for
consideration is whether rectification is warranted on the ground of non-
use.
10. A trade mark can be removed from the Register on the ground
of non-use if the petitioner establishes that the case falls either within
clause (a) or clause (b) of sub-section (1) of Section 47. In order to fall
within clause (a), the trade mark should have been registered without any
bona fide intention on the part of the applicant to use it in relation to the
relevant goods or services and such mark should not have been bona fide
used in relation to such goods or services upto a date ending three
months before the date of application. In order to fall within the scope of
clause (b), there should have been no bona fide use of the mark in
respect of the relevant goods or services for a continuous period of five
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years from the date on which the mark was entered in the Register and
ending on a date three months prior to the date of application for
rectification.
11. As recorded at the outset, the rectification petition was filed on
or about 01.04.2016. The mark was registered on 22.01.2008. Such
registration took effect from the date of application on 21.01.2000. The
first respondent has filed invoices relating to use of the mark from
10.06.1993 to 03.10.2015. In light of the contention of learned counsel
for the first respondent that even use of an altered mark qualifies as use,
the question that falls for consideration is whether such use constitutes
use for purposes of defeating an action under Section 47. The first
respondent relied on Section 55 to contend that use by the first
respondent qualifies as acceptable use of a registered mark. Sub-
section(1) of Section 55 reads as under:
55.Use of one of associated or substantially
identical trade marks equivalent to use of another.-
(1)Where under the provisions of this Act, use of a
registered trade mark is required to be proved for any
purpose, the Registrar or the High Court, as the case may
be, if and, so far as it shall think right, accept use of a
registered associated trade mark, or of the trade mark with
additions or alterations not substantially affecting is
identity, as an equivalent for the use required to be
proved.
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12. The text of sub-section(1) indicates that the use of a trade mark
with additions or alterations may be relied upon to prove use of the
registered trade mark provided such additions or alterations do not
substantially affect identity.
13. As discussed earlier, the earlier invoices contain a pictorial
depiction of Lord Ayyappa, which does not tally with the pictorial depiction
in the registered mark. They also contain the trading name of the first
respondent. Such trading name is, however, not written within the ring
surrounding the pictorial depiction of Lord Ayyappa, as is the case in the
registered trademark. Nonetheless, it cannot be said that the alteration
substantially affects the identity. Therefore, I conclude that use of the
mark by the first respondent as evidenced by invoices issued from
10.06.1993 to 03.10.2015 qualify as proof of use in terms of Section 55
of the TM Act. I also conclude that such use is bona fide. The period of
use extended, as per evidence, at least until 03.10.2015. The assertion in
the counter statement is that the mark has been used continuously since
1992. As a consequence, the petitioner has failed to make out a case for
rectification under Section 47 of the TM Act.
14. The first respondent did not, however, apply for and receive
permission from the Registrar under Section 59 for alteration of the mark.
Therefore, if an action for infringement were to be filed by the first
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respondent, deceptive similarity would be required to be tested by
comparing the petitioner’s mark, as used, with the first respondent’s mark
as registered but not as used.
15. A final aspect remains to be considered, viz., the order issued
by the Registrar of Trade Marks on the complaint lodged by a third party
under Section 107 of the TM Act. A complaint under Section 107 pertains
to alleged misrepresentation of a mark as a registered mark. In the
invoices relied upon by the first respondent in these proceedings, there is
no assertion that the mark is registered. Therefore, the decision of the
Registrar of Trade Marks in the complaint under Section 107 of the TM Act
has no bearing on this petition and, in any event, such order has been set
aside by this Court in (T)CMA(TM) No.24 of 2023, S.Datta Shabarish
trading as M/s.Sri Lakshmi Venkateshwara Rice Industries Siruguppa,
Bellary District Vs. Registrar of Trade Marks and another, by order
dated 26.02.2024.
16. For reasons aforesaid, the petition for rectification fails and the
same is dismissed. There shall be no order as to costs.
11.03.2026
Index: Yes
Neutral Citation: Yes
mmi
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(T)OP(TM) No. 234 of 2023
SENTHILKUMAR RAMAMOORTHY, J.
mmi
To
The Registrar of Trademarks
Office of the Trademarks Registry,
Chennai 600 032.
(T)OP(TM) No. 234 of 2023
11.03.2026
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