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2015 DIGILAW 466 (KAR)

Akar Enterprises v. Nanjundeswara Traders

2015-04-23

ARAVIND KUMAR

body2015
ORDER : Aravind Kumar, J. 1. Heard Sri Harikrishna S. Holla, learned Counsel appearing for petitioner/plaintiff and Sri S. Rajendra, learned Counsel appearing for respondent 1/defendant 1. Respondent 2 has been deleted vide order dated 8-4-2015. By consent of learned Advocates appearing for parties, matter is taken up for final disposal. Plaintiff in O.S. No. 4431 of 2009 being aggrieved by order passed by the Trial Court allowing I.A. No. 12 filed by defendant 1 under Section 124(1)(b)(i) of the Trade Marks Act, 1999 (for short, the 'Act') and staying further proceedings in the suit till the proceedings in No. ORA/82/2014/TM/CH initiated by plaintiff against the defendant pending before the Intellectual Property Appellate Board (for short, the 'Board') is disposed of, has filed this writ petition. 2. Facts in brief which has led to filing of this writ petition are as under: "Plaintiff herein has filed a suit seeking various reliefs under the Trade Marks Act, 1999, Copyright Act, 1957, and primarily for perpetual injunction to restrain the defendant or anyone claiming through it from infringing the plaintiff's copyright in respect of its mark 'AKAR' by using the mark 'AKASH' for salt or any other similar get-up, design colourable imitation of plaintiff's registered copy right and also to restrain defendant by a decree of perpetual injunction from infringing plaintiff's registered trade mark 'AKAR' and also to restrain defendant from passing off 'AKASH' as and for plaintiff's trade mark 'AKAR' used for manufacturing and marketing of salt by using offending mark 'AKASH'." 3. On service of suit summons, defendant appeared filed its written statement and contending specifically that it has obtained approval of its trade mark 'AKASH' and authorities having issued the said trade mark to defendant, they should not be restrained by any order of injunction. Along with plaint an application also came to be filed by plaintiff seeking an order of temporary injunction, which was contested by defendant and said application is said to have been dismissed and plaintiff seems to have not pursued its grievance before the higher forum. 4. Be that as it may. Along with plaint an application also came to be filed by plaintiff seeking an order of temporary injunction, which was contested by defendant and said application is said to have been dismissed and plaintiff seems to have not pursued its grievance before the higher forum. 4. Be that as it may. During the pendency of suit defendant filed an application I.A. No. 11 under Section 124 of the Act seeking for a direction to plaintiff that if it is aggrieved by the registered trade mark granted in favour of defendant, it may apply for rectification of trade mark as contemplated under the Act and till such time to stay further proceedings vide Annexure-R2. Said application came to be resisted by plaintiff and Trial Court by its order dated 16-4-2014, Annexure-R4, dismissed the application. Thereafter, I.A. No. 12 came to be filed by defendant under Section 124(1)(b)(i) of the Act seeking for stay of further proceedings in the suit till such time the proceedings initiated by plaintiff before the Appellate Board is disposed of. Said application was resisted by plaintiff and at the first instance it was dismissed by order dated 20-6-2014 and it was challenged before this Court in W.P. No. 29170 of 2014 by the defendant. This Court after considering rival contentions quashed the order passed by Trial Court dismissing I.A. No. 12 and remitted the matter to Trial Court for being disposed of afresh by keeping in mind the observations made in the order dated 14-7-2014, Annexure-J. 5. Pursuant to same Trial Court having heard the learned Advocates appearing for parties has allowed the application I.A. No. 12 vide order dated 4-12-2014, Annexure-M, by concluding that defendants have produced material to establish that plaintiff has sought for rectification of trade mark before the concerned authorities insofar as it relates to registered trade mark of defendants and as such, it concluded that plaintiff having initiated proceedings before the Board and said fact having not been brought to its notice, earlier proceedings pending before the Board falls within the ambit of Section 124(1)(b)(i) of the Act and as such, it has stayed the proceedings of suit till the disposal of proceedings before the Appellate Board, which is impugned in the present writ petition. 6. 6. The contention of Sri Harikrishna S. Holla, learned Counsel appearing for petitioner/plaintiff, who is seeking for quashing of impugned order namely, order passed by Trial Court allowing I.A. No.12 filed by defendants and staying of further proceedings of suit can be summarized as under: (i) When the suit filed by plaintiff is both for infringement of trade mark and passing off, even if the Court were to stay the proceedings, it ought to have been restricted to the issue/prayer relating to infringing the trade mark and ought not to have proceeded with the suit in respect of other prayers; (ii) When defendant has not taken a plea in the written statement with regard to invalidity of plaintiff's registered trade mark, provision of Section 124(1)(b)(i) cannot be pressed into service by the defendant; (iii) As on the date of filing of suit no proceedings were pending before the Appellate Board and as such, Section 124(1)(b)(i) is not attracted to the facts and circumstances of the case; (iv) There is a delay in filing the application for stay of proceedings and as such, this aspect has not been taken note by the Trial Court. 7. In support of his submission, Sri Harikrishna S. Holla has relied upon the following judgments: (i) Micolube India Limited v. Maggon Auto Centre and Another, 2010 (42) PTC 462 (Del.); (ii) Financial Times Limited v. Bennett Coleman and Company Limited, 2011 (46) PTC 427 (Del.); (iii) Stokely Van Champ Inc and Others v. Heinz India Private Limited, 2012 (52) PTC 540 (Del.); (iv) Sabmiller India Limited v. Fortune Alcobrew Private Limited and Others, 2014 (58) PTC 562 (Bom.); (v) Lupin Limited and Another v. Johnson and Johnson and Another, 2015 (61) PTC 1 (Bom.) (FB). 8. 8. Per contra, Sri S. Rajendra, learned Counsel appearing for respondent 1/defendant, who has supported the order passed by Trial Court would contend that after pleadings were completed parties went for trial and even in the cross-examination, which commenced during the year 2013, nothing was mentioned by the witness examined on behalf of plaintiff with regard to application for invalidating defendant's trade mark having been filed by plaintiff and as such, question of filing an application under Section 124(1)(b)(i) of the Act, did not arise and only when notice from the Board was received by the defendants, application for stay of proceedings was filed and earlier application filed by defendants namely, I.A. No. 11 related to prayer made, which was in consonance with Section 124(1)(b)(ii) of the Act namely, invoking the power of Court to stay the proceedings despite no proceedings being pending before the Board regarding invalidating of registration of plaintiff's/defendant's trade mark and dismissal of said application does not deprive the right of defendant to seek for stay of further proceedings in the suit by invoking Section 124(1)(b)(i) of the Act and it is this precise exercise which was undertaken by defendant to seek for stay and considering the facts and circumstances of present case and by taking note of subsequent events, which had occurred in the present suit, Trial Court has allowed the application by granting stay of further proceedings and there is no infirmity, whatsoever, committed by the Trial Court calling for exercise of supervisory jurisdiction by this Court to interfere with the said order and hence he prays for dismissal of the writ petition. 9. In support of his submissions, he has relied upon the following judgments: (i) Zino Davidoff S.A. v. Mahendra Kumar and Another ILR 2011 Kar. 4541; (ii) Puma Stationer Private Limited v. Hindustan Pencils Limited(2010) 2 Laws (DLH) 396; (iii) Ashland Licensing and Intellectual Property LLC v. Savita Chemicals Limited, I.A. Nos. 7395 and 10983 of 2009 in SC (OS) Nos. 1 to 31 of 2009, decided on 22-7-2010. 10. Having heard the learned Advocates appearing for parties and on perusal of case papers and the case laws pressed into service, this Court is of the considered view that following chronological dates and events requires to be stated for examining the rival contentions. As such, they are extracted here in below: Sl. No. Particulars Date 1. 10. Having heard the learned Advocates appearing for parties and on perusal of case papers and the case laws pressed into service, this Court is of the considered view that following chronological dates and events requires to be stated for examining the rival contentions. As such, they are extracted here in below: Sl. No. Particulars Date 1. Suit O.S. No. 4431 of 2009 filed on 7-7-209 2. Written statement filed by first defendant 30-11-2009 3. I.A. No. 11 filed under Section 124(1)(b)(ii) of the Act for a direction to the plaintiff to apply for rectification and till such time to stay the proceedings 5-12-2014 4. I.A. No. 11 came to be dismissed 16-4-2014 5. I.A. No. 12 filed under Section 124(1)(b)(i) of the Trade Marks Act, 1999, read with Section 151 of Civil Procedure Code, 1908 by defendants for stay of suit. 20-6-2014 6. I.A. No. 12 came to be dismissed 20-6-2014 7. Defendants challenged the order of dismissed dated 20-6-2014 in W.P. No. 29170 of 2014, and said writ petition came to be allowed and matter was remitted back to the Trial Court. 14-7-2014 8. Objections filed to I.A. No. 12 by plaintiff 28-7-2014 11. Application in question I.A. No. 12 came to be filed by defendants seeking for stay of proceedings in the suit by invoking Section 124(1)(b)(i) of the Trade Marks Act, 1999 on the ground that defendants had received a notice from Intellectual Property Appellate Board dated 7-5-2014 and said proceedings had been initiated by plaintiff under Sections 47(1)(a), 47(1)(b) and 50(2) of the Act seeking for expunging and removing the trade mark of defendants and contending inter alia that in view of Section 30(2)(e) of the Act the recourse which was open to plaintiff was to seek for rectification/deletion of defendant's trade mark before the Authorities and plaintiff having taken said course during the pendency of proceedings before Civil Court, said proceedings before the Civil Court ought to be stayed as per Section 124(1)(b)(i) of the Act. 12. In the light of plaintiff having invoked Section 124(1)(b)(i) of the Act and 1st defendant having contended that only recourse left open to plaintiff is to seek for rectification of Registered trade mark issued by authorities to first defendant, it would be necessary to extract these provisions. They read as under: "30. 12. In the light of plaintiff having invoked Section 124(1)(b)(i) of the Act and 1st defendant having contended that only recourse left open to plaintiff is to seek for rectification of Registered trade mark issued by authorities to first defendant, it would be necessary to extract these provisions. They read as under: "30. Limits on effect of registered trade mark.--(1) Nothing in Section 29 shall be construed as preventing the use of a registered trade mark by any person for the purposes of identifying goods or services as those of the proprietor provided the use.-- (a) is in accordance with honest practices in industrial or commercial matters, and (b) is not such as to take unfair advantage of or be detrimental to the distinctive character or repute of the trade mark. (2) A registered trade mark is not infringed where.-- (a) the use in relation to goods or services indicates the kind, quality, quantity, intended purpose, value, geographical origin, the time of production of goods or of rendering of services or other characteristics of goods or services; (b) a trade mark is registered subject to any conditions or limitations, the use of the trade mark in any manner in relation to goods to be sold or otherwise traded in, in any place, or in relation to goods to be exported to any market or in relation to services for use or available or acceptance in any place or country outside India or in any other circumstances, to which, having regard to those conditions or limitations, the registration does not extend; (c) the use by a person of a trade mark.-- (i) in relation to goods connected in the course of trade with the proprietor or a registered user of the trade mark if, as to those goods or a bulk or which they form part, the registered proprietor or the registered user conforming to the permitted use has applied the trade mark and has not subsequently removed or obliterated it, or has at anytime expressly or impliedly consented to the use of the trade mark; or (ii) in relation to services to which the proprietor of such mark or of a registered user conforming to the permitted use has applied the mark, where the purpose and effect of the use of the mark is to indicate, in accordance with the fact, that those services have been performed by the proprietor or a registered user of the mark; (d) the use of a trade mark by a person in relation to goods adapted to form part of, or to be accessory to, other goods or services in relation to which the trade mark has been used without infringement of the right given by registration under this Act or might for the time being be so used, if the use of the trade mark is reasonably necessary in order to indicate that the goods or services are so adapted, and neither the purpose nor the effect of the use of the trade mark is to indicate, otherwise than in accordance with the fact, a connection in the course of trade between any person and the goods or services, as the case may be; (e) the use of a registered trade mark, being one of two or more trade marks registered under this Act which are identical or nearly resemble each other, in exercise of the right to the use of that trade mark given by registration under this Act. (3) Where the goods bearing a registered trade mark are lawfully acquired by a person, the sale of the goods in the market or otherwise dealing in those goods by that person or by a person claiming under or through him is not infringement of a trade by reason only of.-- (a) the registered trade mark having been assigned by the registered proprietor to some other person, after the acquisition of those goods; or (b) the goods having been put on the market under the registered trade mark by the proprietor or with his consent. (4) Sub-section (3) shall not apply where there exists legitimate reasons for the proprietor to oppose further dealings in the goods in particular, where the condition of the goods, has been changed or impaired after they have been put on the market. 124. Stay of proceedings where the validity of registration of the trade mark is questioned, etc.--(1) Where in any suit for infringement of a trade mark.-- (a) the defendant pleads that registration of the plaintiff's trade mark is invalid; or (b) the defendant raises a defence under clause (e) of sub-section (2) of Section 30 and the plaintiff pleads the invalidity of registration of the defendant's trade mark, the Court trying the suit (hereinafter referred to as the Court), shall.-- (i) if any proceedings for rectification of the register in relation to the plaintiff's or defendant's trade mark are pending before the Registrar or the Appellate Board, stay the suit pending the final disposal of such proceedings; (ii) if no such proceedings are pending and the Court is satisfied that the plea regarding the invalidity of the registration of the plaintiff's or defendant's trade mark is prima facie tenable, raise an issue regarding the same and adjourn the case for a period of three months from the date of the framing of the issue in order to enable the party concerned to apply to the Appellate Board for rectification of the register. (2) If the party concerned proves to the Court that he has made any such application as is referred to in clause (b)(ii) of sub-section (1) within the time specified therein or within such extended time as the Court may for sufficient cause allow, the trial of the suit shall stand stayed until the final disposal of the rectification proceedings. (2) If the party concerned proves to the Court that he has made any such application as is referred to in clause (b)(ii) of sub-section (1) within the time specified therein or within such extended time as the Court may for sufficient cause allow, the trial of the suit shall stand stayed until the final disposal of the rectification proceedings. (3) If no such application as aforesaid has been made within the time so specified or within such extended time as the Court may allow, the issue as to the validity of the registration of the trade mark concerned shall be deemed to have been abandoned and the Court shall proceed with the suit in regard to the other issues in the case. (4) The final order made in any rectification proceedings referred to in sub-section (1) or sub-section (2) shall be binding upon the parties and the Court shall dispose of the suit conformably to such order insofar as it relates to the issue as to the validity of the registration of the trade mark. (5) The stay of a suit for the infringement of a trade mark under this section shall not preclude the Court from making any interlocutory order (including any order granting an injunction directing account to be kept, appointing a receiver or attaching any property), during the period of the stay of the suit". 13. A bare reading of sub-clause (i) of clause (b) of sub-section (1) of Section 124 would clearly indicate that when proceedings for rectification of the register in relation to the plaintiff's or defendants trade mark is pending before the Appellate Board, the suit should be stayed, pending final disposal of such proceedings. 14. Perusal of Section 124(1)(b)(ii) would indicate that even where no proceedings are pending before the Registrar or Appellate Board regarding the invalidity of registration of plaintiff's/defendant's trade mark, still an issue regarding same can be raised by the Civil Court if it is satisfied such plea is prima facie tenable and adjourn the case for a period of three (3) months from the date of framing of issue in that regard, to enable the party concerned to apply to the Appellate Board for rectification of the register. 15. 15. Keeping the sequential events referred to hereinabove, when facts on hand are examined in the background of statutory provision namely, Sections 124 and 30 of the Act, it would emerge that undisputedly both plaintiff and defendants have obtained registration of their trade mark AKAR' and 'AKASH' respectively. Plaintiff has instituted the suit in question in the year 2009 and being conscious of the defence set up by defendants in their written statement, which undisputedly came to be filed on 30-11-2009, as per Annexure-G, where under defendants have specifically contended that it has obtained registration of its mark 'AKASH' from the Trade Marks Authorities, plaintiff did not pursue its grievance before those Authorities for reasons best known. On the other hand plaintiff chose to prosecute the suit filed before Civil Court and as such after framing of issues parties went for trial. Undisputedly, there is no order of temporary injunction operating against the defendants. In this background when the parties went for trial and defendants having taken a specific stand that it has also obtained registration of its mark, it cannot be gain said by plaintiff that application I.A. No.12 is not maintainable on the ground it could have been filed only if proceeding before Appellate Board was pending as on date of institution of suit. Plaintiff as noted hereinabove, had not taken any steps to seek for invalidating defendant's trade mark nor defendants took any steps to seek for invalidating plaintiff's trade mark. It emerges from the written statement that first defendant had raised a plea that Section 30(2)(e) enables it to use its registered trade mark "AKASH" irrespective of the fact that plaintiff is having a registered mark for its product as "AKAR" and as such, no order or decree for perpetual injunction be passed against it or in other words defendants have taken umbrage under Section 30(2)(e) of the Act to stave off plaintiff's claim for perpetual injunction. 16. On account of non-availability of any material during the pendency of proceedings before the Civil Court, defendant obviously did not put up or set up a plea with regard to stay of the proceedings by pressing into service Section 124(1)(b)(i) of the Act. 16. On account of non-availability of any material during the pendency of proceedings before the Civil Court, defendant obviously did not put up or set up a plea with regard to stay of the proceedings by pressing into service Section 124(1)(b)(i) of the Act. But, on the other hand had filed an interlocutory application I.A. No. 11 under Section 124(1)(b)(ii) seeking for a direction by the Court to plaintiff to apply for rectification of trade mark granted in favour of defendant's, if aggrieved by the registered trade mark granted to in favour of defendant. Said application i.e., I.A. No. 11 undisputedly came to be dismissed by the Trial Court by the order dated 16-4-2014 as per Annexure-R4 and same has attained finality. 17. It is thereafter when defendant received a notice from the Appellate Board on 7-5-2014, which relates to the proceedings initiated by the plaintiff seeking for invalidating the registered trade mark of the defendant and same being taken up for consideration by the Board, defendant has moved an application under Section 124(1)(b)(i) of the Act seeking for stay of the proceedings before Trial Court. In fact, plea raised by the defendant in paragraph 5 of the affidavit supporting the application I.A. No. 12 for stay, would clearly indicate or disclose that cause of action pleaded for filing said application I.A. No. 12 was receipt of the notice from the Appellate Board. Hence, the issue of delay or the earlier application (I.A. No. 11) having been dismissed would disentitle the defendant to file application for stay by invoking Section 124(1)(b)(i) of the Act are all issues which would recede to background and they would be of no consequence. 18. At this juncture, it would be apt to deal with the contention raised by Mr. Harikrishna S. Holla, viz., that proceedings for rectification should have been pending as on the date of filing of the suit to enable the defendant to seek for stay of the proceedings. The language employed in Section 124(1)(b)(i) does not even remotely suggest that such proceedings should be pending before the Appellate Board or the Registrar as on the date of filing of the suit. The language employed in Section 124(1)(b)(i) does not even remotely suggest that such proceedings should be pending before the Appellate Board or the Registrar as on the date of filing of the suit. In the instant case, the only defence, which was set up by the defendant to stave off the claim of plaintiff is by raising a plea that it had already obtained registration of its trade mark "AKASH" and as such it is entitled to use the said trade mark in view of Section 30(2)(e) of Trade Marks Act, enabling the defendant to use its registered trade mark. It is on account of such plea put up by the 1st defendant/plaintiff seem to have moved an application before the Appellate Board seeking for invalidating the defendant's registered trade mark. When the proceedings relating to defendant registered trade mark is pending before the Appellate Board and said issue is seized by the Appellate Board, necessarily those proceedings would have a direct bearing and impact on the issues framed in the present suit, which relates to not only alleged infringement of plaintiff's trade mark but also for action of passing off, and as such the course which was required to be adopted by the Court below was to stay the proceedings and accordingly, in exercise of power under Section 124(1)(b)(i) of the Act, it has rightly stayed the said proceedings. In fact, this Court while examining as to the mode, manner and method in which Section 124(1) and sub-section (5) of Section 124 along with Sections 30(2)(d), 30(2)(e) and 31(2) of the Trade Marks Act would operate, in the matter of Zino Davidoff S.A. v. Mahendra Kumar, disposed of on 11-11-2011, has held as under: "38. From a perusal of the above provisions, it would emerge that when a suit is filed for infringement of trade mark and injunction is sought for, such suit can be stayed in the eventualities enumerated in sub-section (1) namely when: (a) Defendant pleads that registration of plaintiff's trade mark is invalid. (b) The defendant raises a defence under clause (e) of sub-section (2) of Section 30 of plaintiff also pleads the invalidity of the registration of defendant's trade mark. (b) The defendant raises a defence under clause (e) of sub-section (2) of Section 30 of plaintiff also pleads the invalidity of the registration of defendant's trade mark. (c) If there are any proceedings for rectification pending before the Registrar or Appellate Board in relation to plaintiff or defendant's trade mark; or (d) If the Court is satisfied that plea regarding invalidity or registration of the plaintiff's or defendant's trade mark is prima facie tenable. 39. When the aforesaid eventualities are examined in the context of present case, it would emerge that at the time of filing of objections to the application for temporary injunction namely I.A. Nos. I and II, defendant had not lodged its objections to the trade mark of the plaintiff before the Registrars of Trade Marks or had filed any appeal before Intellectual Property Appellate Board. Said objections have been filed during October 2010 by the defendant, i.e., after the order was passed by the Trial Court. It would also emerge from a combined reading of Sections 30(2)(e) and 124(1) that there should be an existing dispute between the parties regarding the trade mark in question and in the event of one or more trade marks registered under the Act are identical or nearly resemble each other, then there would be a dispute as to its usability by both the parties and not otherwise. In such circumstances, suit requires to be stayed and not otherwise. It would be necessary to note at this stage that invalidity of the registration cannot be presumed under sub-section (2) of Section 31 of the Act particularly when there is no plea put forward in this regard. Hence, it cannot be held that on the ground of the probable claim that defendant may raise with regard to the trade mark in question, injunction cannot be granted. This fact is also fortified from sub-section (5) of Section 124 itself which does not preclude the Court from making any interlocutory order including grant of an order of temporary injunction. Hence, contention raised by learned Counsel for defendant that Trial Court was justified in refusing temporary injunction on this ground is not tenable. Even otherwise also an order of temporary injunction was operating against the defendant from 26-3-2008 till 20-7-2010". 19. It is noticed that the said order passed by this Court has been affirmed by the Hon'ble Apex Court in SLP (Civil) Nos. Even otherwise also an order of temporary injunction was operating against the defendant from 26-3-2008 till 20-7-2010". 19. It is noticed that the said order passed by this Court has been affirmed by the Hon'ble Apex Court in SLP (Civil) Nos. 29367 to 29386 of 2011 Mahendra Kumar and Another v. Zino Davidoff SA, disposed of on 11-11-2011. It has been held by this Court in Znio Davidoff SA's case as noticed hereinabove that suit can be stayed in the contingencies laid down under clauses (a) to (d) indicated in Zino Davidoff SA's case. Keeping this in mind, when the facts on hand are examined, it would emerge from the pleadings namely written statement that defendant has specifically raised a defence contending inter alia that when plaintiff pleads invalidity of defendant's registered trade mark, it does not prevent or prohibit the defendant from using its registered trade mark by taking umbrage under Section 30(2)(e) of the Act. It has been further pleaded by defendant in the affidavit supporting I.A. No. 12 that an application has since been filed by plaintiff before the Appellate Board seeking for invalidation of defendant's registered trade mark and as such, the proceedings relating to invalidation of defendant's registered trade mark having been initiated by the plaintiff during the pendency of the suit, is the cause of action for the defendant to seek for stay of the suit or proceedings before Civil Court. Said plea deserves to be accepted as it falls within the parameter of Section 124(1)(b)(i) of the Act. As such, no illegality can be attributed at the impugned order. 20. Suit in question was filed in the year 2009 and pleadings were complete. Hence, parties have proceeded to trial, knowing fully well that no proceedings were pending. However, during the pendency of the suit plaintiff filed an application or initiated proceedings before the Appellate Board under Sections 47(1)(a), 47(1)(b) and 50(2) of the Act and sought for invalidating the trade mark "AKASH" bearing No. 1147895 in Class 30 standing in the name of the first defendant, which resulted in notice dated 7-5-2014 being issued to the defendants by the Appellate Board and immediately thereafter, i.e., on 20-6-2014, interlocutory application I.A. No. 12 for stay of the proceedings came to be filed under Section 124(1)(b)(i) of the Act by the defendant. In that view of the matter, no illegality can be found in the order passed by the Trial Court where under proceedings having been stayed till disposal of proceedings before Appellate Board. Judgments relied upon by the learned Advocates appearing for the parties as noticed herein have been obtained in the facts and circumstances of the said case and in fact in the judgment relied upon by Mr. Holla, in the matter of Sabmiller India Limited, it has been held that, where no proceedings for rectification of the plaintiff registered trade mark was pending on the date of the institution of the suit and in the circumstances, obtained in the said case, it came to be held that Section 124(1)(b)(i) was not attracted. Even in the present case though no proceedings were pending as on the date of filing of the suit and defendant had set up a plea of having a registered trade mark issued in its favour, has taken umbrage under Section 30(2)(e) of the Act. Subsequent to the filing of the suit, plaintiff has filed an application before the Appellate Board seeking for invalidating defendant's trade mark, which gave cause of action for the defendant to press into service Section 124(1)(b)(i) and rightly defendant sought for stay of the proceedings, which was on account of said issue being seized by the Board namely with regard to invalidation of the defendants trade mark. Hence, Trial Court has rightly dismissed the application which is in consonance with Section 124(1)(b)(i) of the Act. 21. Disposal of this writ petition would not come in the way of the plaintiff seeking for any interlocutory order as contemplated under sub-section (5) of Section 124 of the Act. With this observation order passed by Trial Court dated 4-12-2014 Annexure-M is hereby affirmed. For reasons aforestated I proceed to pass the following order: ORDER (i) Writ petition is hereby disposed of, subject to observation made hereinabove. (ii) Order dated 4-12-2014 Annexure-M passed by XVIII Additional City Civil and Sessions Judge, Bengaluru, is hereby affirmed. (iii) No order as to costs.