Letters Patent Appeal will lie against single-judge order passed in appeal against decision of Registrar of Trademarks: Delhi High Court

The Delhi High Court recently held that a Letters Patent Appeal (LPA) can be filed before a division bench against a judgement passed by a single-judge in an appeal against an order of the Registrar of Trademarks [Promoshirt SM SA v Armasuisse and Another]..A division bench of Justices Yashwant Varma and Dharmesh Sharma observed that the Registrar of Trademarks is not a civil court. Therefore, the bar under Section 100A (no further appeal in certain cases) of the Civil Procedure Code (CPC) - which only applies to appeals against civil court orders - does not lie when it comes to orders passed by the Registrar, the Court held. “We have no hesitation in holding that it (Registrar of Trademarks) would not qualify the test of “trappings of a court” in light of the decisions in Anglo-French Drug Co. and Khoday Distilleries. Section 91 of the 1999 TM Act does not prescribe the appellate remedy to be governed by the provisions of the (Civil Procedure) Code… All of the above would tend to indicate that the LPA against an order passed by a Single Judge while exercising the Section 91 (of the Trade Marks Act) power would not be barred,” the Court held..The bench observed that Section 100A of CPC bars the filing of a further appeal from a decision rendered by a single-judge if the judge was hearing an appeal from an original or appellate decree or order..It noted that the appellate provision in the Trademarks Act does not mandate that the appeals avenue would be subject to or be governed by the provisions of the CPC. Therefore, in absence of any provision regulating or restricting the right to appeal, the LPA remedy would not be barred by Section 100A of the CPC, the Court said..“We doubt that the provisions of Section 100A of the Code could be either stretched or interpreted as being intended to cover all appeals that may otherwise be presented or be available to be instituted in terms of provisions contained in special enactments," the Court reasoned. The Court, however, added that the LPA remedy would not be available where a special statute subjects the appeal remedy to follow the rules applicable to appeals and embodied in the CPC.“Once the appeal is made subject to the rules incorporated in the Code, all restrictions to an appeal including Section 100A would get attracted and attached. This since the appeal provision in such a case would be deemed to have consciously adopted all restrictions as put in place under the Code and would override the letters patent provision," the Court said. .The bench passed the ruling while dealing with two LPAs filed by Promoshirt Sm Private Limited challenging a single-judge’s decision to set aside orders of the Registrar of Trademarks, which had granted registration of the mark ‘Swiss Military’ to it.The Registrar’s orders were set aside after Armasuisse (Swiss federal agency of defence procurement) challenged the same. .As Promoshirt filed LPAs against the single-judge’s order, a preliminary objection was raised by the counsel for Armasuisse to the maintainability of the LPAs, asserting that such an LPA would not be maintainable in light of Section 100A of the CPC..Based on its findings, the Court rejected this preliminary objection and listed the LPAs for further hearing on September 19, 2023..Senior Advocate Chander M Lall argued for Promoshirt. It was represented through advocates Swathi Sukumar, Essenese Obhan, Ritik Raghuvansh, Pratyush Rao, Naveen Nagarjuna, Ayesha and Amira Dhawan of Obhan and Associates. Advocates Pravin Anand, Shrawan Chopra, Madhu Rewaria, Shree Mishra, Achyut Tewari and S Singh of Anand and Anand represented Armasuisse. .[Read Judgment]